# Petition — Democratic National Committee v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0329%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 890 ## 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, V. 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 eo —— 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. 4 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. 5 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 © Use of Broadcast Facilities by Candidates for Public Office, 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’’). 6 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.” 7 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). 8 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. 9 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 designed by the licensee to further the interests of a par- 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. 10 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. 12 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 13 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 14 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.” 15 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. 16 . 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 -Browr debrte at issue in the Wyckoff mv nowsworthy. They contend rather that the 43a 21 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 22 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 23 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 25 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 26 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 27 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 generally on proposals to abolish the equal time requirement altogether or to amend the law to permit studio debates or speeches, both non-exempt uses under either of the Commission’s interpretations. Petitioners rely upon the fact that the Commission’s decisions were reported to Congress and discussed, for example, in the Commission’s Annual Reports to Congress and Equal Time Primer. DNC Brief at 44-46. Although this indicates that Congress was “aware” of the Com- mission’s interpretation, at least in a technical sense, Congressional inaction in this instance is entirely con- sistent with the interpretation that Congress was willing to leave to the Commission the interpretation of the exemptions as they applied to specific program formats. 50a 28 In this sense, Congressional acquiescence in the Com- mission's interpretation does not indicate that it was the only, or the best, interpretation. The circumstances surrounding the reports themselves indicate that Con- gress had in no way adopted the Commission's inter- pretation as its own. For example, in the 1963 Hear- ings before the louse Commerce Committee, FCC Chair- man Minow cited the Brown-Nixon debate as an example of a close case in applying the Section 315/a)(4) ex- emplions and informed the Committee that the Com- mission had ruled that the debate did not qualify as a bona fide news event. In response, Chairman Harris strongly indicated his disagreement with the Commis- sion’s narrow interpretation of the “bona fide news event” exemption, stating: Is not the bringing together of two major political candidates . . . a bona fide news event? Perhaps, I do not appreciate the definition of a bona fide news event. ... Are we going to deprive the people under this strict interpretation which you suggest here, of the broadeastings of this event? Political Broadcasts—Equal Time Hearing Before the House Commerce Committee, 88th Cong., Ist Sess., 65-67 (1963), quoted in FCC Brief at 37. Certainly this state- ment is less consistent with ratification of the Com- mission’s interpretation than with a willingness to allow the Commission some leeway in interpretation and ap- plication of the exemption to specific news-related for- mats. In short, under these circumstances, we believe that Congress’ failure to overrule the Wyckoff, Good- will and 1964 Columbia Broadcasting System decisions sheds little light on Congress’ intent, other than to dem- onstrate adherence to the basic philosophy of the equal ‘ime requirement, since such inaction must be viewed egainst the background of Congress’ decision to leave the Commission some discretion to decide which particu- S5la 29 lar events should qualify for the broadly defined news coverage exemptions.” Petitioners further contend that the Federal Election Campaign Act (“FECA”), 86 Stat. 3 ef seq., reenacted Section 315, thereby positively approving the prior ad- ministrative construction. DNC Brief at 44-52; Brief for Chisholm and NOW at 65-67. We find this argu- ment wholly unpersuasive. Although Congress did amend the Act in 1971 to include provisions relating to the cost of political advertising, 86 Stat. 4, 47 U.S.C. § 312(a) (7), the nature of the “reenactment” was extremely limited and concerned solely with reforming political campaign finance activities. The FECA amendments were in no way concerned with the equal time exemptions, and, in fact, by-passed Section 315(a) altogether. The doctrine of reenactment simply cannot be stretched this far. See generally SUTHERLAND ON STATUTORY CON- STRUCTION, §§ 22.08, 22.33 (1973). The cases upon which petitioners rely for this con- tention are likewise distinguishable: all involved more specific reenactments or viewed Congressional acquies- cence as but one of many factors in interpreting am- biguous statutory language. For example, in Helvering v. Reynolds Tobacco Co., 306 U.S. 110 (1939), a case cited by petitioner DNC as “precisely dispositive,” the Supreme Court held that the reenactment of the Reve- nue Acts without alteration indicated Congressional ap- proval of the administrative construction of the Treasury Department; hence, the construction had attained the force of law. 306 U.S. at 114-15, cited in DNC Brief at 48. In that case, however, the specific statutory pro- vision had been fully restated and repeatedly reenacted without change in each successive Revenue Act. /d. at 115 n.10. Moreover, the Supreme Court has recognized 2? See discussion in Part ITA of this opinion. 52a 30 the unique character of Internal Revenue Code cases due to the practice of Congressional amendment and reenactment. See Zuber v. Allen, supra, 396 U.S. at 185 n.21. Similarly, in United States v. Leslie Salt Co., 350 U.S. 383 (1956), the Supreme Court refused to alloy a new administrative definition of “debenture” to include certain promissory notes in the face of a consistent definition of 23-years duration. There, how- ever, the Court based its decision largely on express Congressional approval of the old definition, since Con- gress had incorporated a similar definition into the statute by amendment, id. at 390-91, and since debentures and promissory notes had been taxed under separate provisions until the tax on promissory notes was re- pealed. Jd. at 388-91. Finally, in Kay v. FCC, 148 U.S.App.D.C. 223, 443 F.2d 638 (1970), a panel of this court upheld the Commission’s interpretation of Section 315 to apply separately to primary ond general elections, so that during a primary election a broadcast “use” by a candidate gives rise to equal opportunities obliga- tions only with respect to other candidates for his party’s nomination. In Kay, however, the fact that Congress had amended Section 315 in 1959 without changing the language relied upon by the Commission was considered merely “an added circumstance which has some persua- sive weight.” Jd. at 646. The Kay court specifically stated that legislative silence in the face of administra- tive interpretation does not necessarily indicate legisla- tive approval. /d.* : 78 In Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235 (1970), cited in Kay v. FCC, supra, the Supreme Court stated: [']n the absence of any persuasive circumstances evi- dencing a clear design that congressional inaction be taken »s acceptance of fan earlier decision], the mere silence of Congress is not a sufficient reason for refus- ing to reconsider the decision. 398 U.S. at 241-42. 53a 31 We are thus unable to discover from the extensive, if rather ambiguous, legislative history any conclusive in- dication of a Congressional intent with respect to can- didates’ debates and press conferences. Congress’ fail- ure to take action in the face of the Commission’s 1962 and 1964 decisions is subject to more than one inter- pretation. In the words of Judge Hand: . . . LNJot every ruling is incorporated in the text because it is not repudiated |by Congress]; no one has ever suggested anything of the sort. At most, administrative practice is a weight in the scale, to be considered, but not to be inevitably followed. . To suppose that Congress must particularly correct each mistaken construction under penalty of incorporating it into the fabric of the statute ap- pears to be unwarranted... . F. W. Woolworth Co. v. United States, 91 F.2d 973, 976 (1937), quoted in FCC Brief at 42. Moreover, petitioners’ acquiescence and reenactment arguments must be viewed in the context of the ability of administrative agencies to overrule past decisions,” particularly in light of the discretion traditionally af- forded the Commission in interpreting and applying the equal time provision. Congress’ failure to change the statute in the face of the Commission’s interpretation is thus entirely consistent with a demonstrated willing- ness to allow the Commission some leeway in interpret- ing the news exemptions and in applying them to specific news-related events. In these circumstances, we are in no position to say that the Commission has misinterpreted Congress’ in- tent or usurped its authority. The Commission’s Opin- ion is consistent with the broad Congressional purpose 2° See generally K. DAVIS, ADMINISTRATIVE LAW TREATISE § 17.07 (1965). | 54a 32 in enacting the 1959 exemptions—permitting increased broadcaster discretion and encouraging greater coverage of political news—and operates in an area where the Commission has been granted greater than normal dis- cretion. We are therefore required to defer to the Commission’s interpretation. III. Tite PROCEDURAL ISSUE: THE PROPRIETY OF OVER- RULING A LONGSTANDING ADMINISTRATIVE DECISION VIA DECLARATORY ORDER RATHER THAN THROUGH RULEMAKING Finally, petitioners Chisholm and NOW argue that, even if the Commission had authority to change its in- terpretation of Section 315(a) (4) to include non-studio debates and candidates’ press conferences, it was re- quired to follow rulemaking procedures, including issuing formal public notice of the CBS and Aspen proposals and inviting public comment in conformance with the Administrative Procedure Act, 5 U.S.C. ° (3, 706 (“APA”) and the Due Process Clause of the Constitu- tion. This is so, petitioners argue, because the Com- mission’s Opinion enunciates new standards for deter- mining what constitutes “on-the-spot coverage of bona fide news events” which are of general prospective ap- plication. Brief for Petitioners Chisholm and NOW at 3-4. We note initially that an administrative agency is permitted to change its interpretation of a statute, es- pecially where the prior interpretation is based on error, no matter how longstanding. See, e.g., Automobile Club v. Commissioner of Internal Revenue, 353 US. 181 (1957). See also American Trucking v. AT&S F.R. Co., 387 U.S. 397, 416 (1967); NLRB v. A.P.W. Product Co., 316 F.2d 899 (2d Cir. 1963). 55a 33 It is, of course, incumbent upon an agency reversing its own policy to provide “an opinion or analysis indicat- ing that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.” Columbia Broadcasting System, Inc. v. FCC, 147 U.S. App.D.C. 175, 454 F.2d 1018, 1026 (1971). The Opinion, grounded in the Commission’s in- terpretation of the legislative history of the 1959 amend- ment and in the broad Congressional intent to provide for increased news coverage of political news, satisfies this minimal standard and is in no other respect “ar- bitrary, capricious, an abuse of discretion, or other- wise not in accordance with law... .” 5 U.S.C. § 706(a). Respecting petitioners’ claim that the Commission acted improperly in reversing precedent which has been followed for more than a decade via adjudication,” rather than through notice and comment rulemaking, we must differ with petitioners’ reading of NLRB v. Bell Aerospace, supra. In Bell Aerospace, the Supreme Court held that the issue of whether cerlain buyers were managerial personnel, and thus exempt from the coverage of the Nationa! Labor Relations Act, need not be decided by rulemaking. That case, like this one, involved a ruling contrary to the agency’s past de- cisions; yet, the Court held that the choice whether to proceed by rulemaking or adjudication is primarily one for the agency regardless of whether the decision may affect agency policy and have general prospective ap- plication. Jd. at 291-95. See also Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and: Administrative Procedure Reform, *° The declaratory ruling belongs to the genre of adjudica- tory rulings. See Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reforn., 118 U. Pa. L. REv. 485 (1970). 56a 34 118 U. Pa. L. Rev. 485, 508-13 (1970). See generally KX. DAvis, ADMINISTRATIVE LAW TREATISE § 501 (1958 ed.'. Bell Aerospace relied heavily on SEC v. Chenery Corp., 382 U.S. 194 (1947) (Chenery II), in which the Court had stated that “the choice made between proceed- ing by general rule or by individual, ad hoe litigation is one that lies primarily in the informed discretion of the administrative agency.” Jd. at 203, quoted in NLRB v. Bell Aerospace, supra, 416 U.S. at 293. Although the majority in Bell Aerospace indicated that there could be instances where reliance on adjudication rather than rulemaking would amount to an abuse of discretion, id. at 2°14, we find nothing to indicate that this is such a case The original interpretation of the 1959 exemptions, which the 1975 Opinion reversed, was also established by adjudication; thus reversal by adjudication seems par- ticularly appropriate here.’ Adjudicatory decisions do not harden into “rules” which cannot be altered or re- versed except by rulemaking simply because they are lonystanding. Moreover, we see no advantage to be gained in this insiance by requiring the Commission to proceed via the formalities of rulemaking rather than. through adjudica- tion. Petitioners DNC, Chisholm and NOW all submitted lengthy comments to the Commission in opposition to the Aspen and CBS petitions. As in Bell Acruspace, supra, we believe the issues were fully aired before the Com- mission, which had the benefit of all arguments raised before this court.** It is therefore difficult to see how "' The views expressed in Cheneny II and Wyman-Gordon make plain that the Board [the NLRB] is not precluded from sinouncing new principles in an adjudicative proceed- ing und that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion. 416 US. at 294. * Petitioner DNC filed a 25-page letter with the Com- mission in oppesition to the “RBS petition. J.A. 45. Peti- 57a 35 requiring the Commission to go through the motions of notice and comment rulemaking at this point would in any way improve the quality of the information avail- able to the Commission or change its decision. The only result would be delay while the Commission ac- complished the same objective under a different label. Such empty formality is not required where the record demonstrates that the agency in fact has had the bene- fit of petitioners’ comments. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 36, 405 F.2d 1082, 1104 (1968), cert. denied, 396 U.S. 842 (1969). For these reasons, we see no procedural irregularity of any substance in the Commission’s 1975 Opinion.” The Commission carefully studied the petitioners’ argu- ments, both explicit in their written submissions and implicit in the Commission’s own interpretations, the Wyckoff, Goodwill and Columbia Broadcasting System tioners Chisholm and NOW also commented on the CBS and Aspen petitions in a 46-page document submitted by the Media Access Project (“MAP”). MAP offered further com- ments on the proposals in a second 13-page document. These documents contain substantially the same arguments ad- vanced in this appeal. 8 Petitioners Chisholm and NOW further contend that the Commission has violated its own regulations which provide thet it “may, in accordance with section 5(d) of the Ad- ministrative Procedure Act [5 U.S.C. § 554(e)], on motion or on its own motion issue a declaratory ruling terminating a controversy or removing an uncertainty.” 47 C.F.R. § 1.2. Petitioners argue that the Commission was not presented with an actual controversy, since there was no request for equal time by any candidate against CBS or any other li- censee. This is entirely too rigid an interpretation of the phrase “terminating a controversy or removing an uncer- tainty.” The litera! language and the fact that the rule contemplates action by the Commission sua sponte remove any doubt that the Commission’s action in issuing the de- claratory order was in accordance with its own procedural regulations. 58a decisions, and rejected them in a well reasoned state- ment. The Commission thus satisfied the demands of the Administrative Procedure Act and the Due Process Clause."' IV. CONCLUSION In conclusion, we find nothing in the Commission’s Opinion inconsistent with the basie philosophy of Section 315 as amended in 1959. The 1959 amendment to Section 315 clearly limited to some extent the simple mechanistic application of that section. In creating a broad exemp- tion to the equal time requirements in order to facilitate broadcast coverage of political news, Congress knowingly faced risks of political favoritism by broadcasters, and opted in favor of broader coverage and increased broad- caster discretion. Rather than enumerate specific exempt and non-exempt “uses,” Congress opted in favor of legislative generality, preferring to assign that task to the Commission. In attempting to implement the Congressional intent behind passage of the four news exemptions, the Com- mission has now reversed its prior interpretation and embarked on a new course which it believes to be more consistent with the letter and spirit of the 1959 amend- ment. According to our reading, the legislative history “It is interesting, as Judge Wright notes, to compare the procedures followed by the FCC here with the more lengthy procedures approved in this court’s en banc opinion in Ethyl Corp. v. EPA, U.S.App.D.C. . F.2d (No. 73-2205, decided March 19, 1976). See Dissenting Op. at 51 n.99. The two cases differ substantially, however, in that the FCC’s task here was to interpret a statute, while the EPA’s task in Ethyl was to reach a conclusion based on scientific evidence. In the former case, the only relevant “public pro- cedures” were hearings and debates already held by Con- gress: in the latter, extensive facts were to be studied by EPA and commented on by the public before a proper con- clusion could be reached. 59a 37 is inconclusive, but we find much support for the Com- mission’s new interpretation. In these circumstances, we are obligated to defer to the Commission’s interpretation, even if it is not the only interpretation possible. We find nothing in Congress’ behavior since 1959, either active or passive, to indicate that the Commission’s prior interpretation was necessarily correct, or that Congress adopted it. Moreover, we find no infirmity in the procedure by which the Commission changed its in- terpretation of the 1959 amendment, since the Commis- sion was not required to proceed by rulemaking, and since nothing would be gained by requiring the Com- mission to so proceed. We veiterate that petitioners submitted lengthy comments ‘o the Commission and ad- vanced substantially all of the arguments advanced here. Finally, we note only in passing that this case involves issues in an intensely political area which this court enters with great reluctance. It is the job of the Com- mission in the exercising of its delegated authority, and ultimately of Congress, to make these kinds of front-line ' determinations. We find no basis for disturbing the Com- mission’s action here, grounded as it is on the Commis- sion’s interpretation of Congressional intent, an inter- pretation which we find reasonable. For the reasons stated herein, we affirm the Com- mission’s Opinion. In so doing, however, we take com- fort in the realization that Congress may correct the Commission if it has misinterpreted Congressional intent or overstepped the bounds of its discretion. So ordered. - » 6Ua ). " The Goodwill Station, Inc., 40 FCC 362, 24 P & F Rapio Rra. 413 (1962) (debate); National Broadcasting Co. (Wyck- off), 40 FCC 370, 24 P & F Rapio Rec. 401 (1962) (debate); Columbia Broadcasting System, Inc., 40 FCC 395, 3 P & F tADIO InG.2D 623 (1964) (presidential and presidential can- didate’s press conferences). These decisions are all overruled by the decision under review. = We must remember that we are not dealing with ordinary legislation: members of Congress are also candidates for political office. See text accompanying notes 84-86 infra. If they believed the Commission had misread their intent, no doubt they would have acted as promptly to reverse the Cor-- mission as they did after Lar Daly. The fact is that the Com- mission has sepeatedly, but unsuccessfully, importuned the Congress to take such action. See notes 1-2 and accompanying text supra. Congress is, of course, «ware of the Commission’s action reversing these long-standing prior decisions. See BROADCAST- ING, March 8, 1976, at 23, 65. Consideration of corrective leg- 66a , 7 the same legislative history 15 years after the fact,” the Commission iias reversed itself, finding that Con- gress did indeed intend to allow debates and press con- ferences in the exemptions after all. I submit that the Commission was right when it read the legislative his- tory the first time. A. The Exemption of Debates and Press Conferences 1. Debates.—(a) The Senate in 1959.—When the Com- munications Subcommittee of the Senate Committee on Interstate and Foreign Commerce met to consider a legis- lative response to the Lar Daly decision, it had four bills before it. Two of those bills would have exempted from the equal time requirement candidate appearances on news shows, panel discussions, debates, and “similar type programs.” '* The other two bills would have ex- islative action has been deferred pending the outcome of the present litigation. See reply brief for intervenors Office of Communications of United Church of Christ et al. (herein- after UCC reply br.) at A-6 (transcript of Nov. 11, 1975 over- sight hearing before Subcommittee on Communications of Senate Committee on Commerce). Thus there can be no in- ference that Congress approves the recent decision because it has not yet acted to overrule the Commission. 18 It is worthy of note that Commissioner Lee, the only cur- rent member of the Commission who was also on the Commis- sion when the 1959 amendment was passed, dissented from the ruling under eview on the ground that “the majority has sidestepped the very purpose of Section 315 of the Communi- cations Act * * *.” Aspen Institute Program on Communica- tions, 55 FCC2d 697, 713, 35 P & F Rapio REG.2pD 49, 68, JA 141, 164 (hereinafter Aspen). ‘* Hearings on S. 1585 Before the Subcommittee on Commu- nications of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., Ist Sess., 2 (1959) (hereinafter Senate Hearings) (S. 1585, S. 1858). S. 1858, the “Fair Political Broadcasting Act of 1959,” introduced by Sen. Hartke, would have completely revised § 315. S. 1585 simply added the listed exemptions to the existing law. 67a 8 cluded from Section 315 only “any news program, in- cluding news reports and news commentaries, where the format and production of the program are determined by the broadcasting station * * *.”"* Much of the dis- cussion during the committee hearings focused on es- tablishing the differences between these two approaches and on «determining what could be broadcast free of equal time obligations under the different formulations. The committee was told that the proposals restricted to exemption of news programs would not allow broadcast of debates between candidates." Whether debates ought to be exempted was recognized as a major issue before the committee." The committee drafted its own bill, combining the ap- proaches in the proposed bills, for submission to the full Senate. The committee’s bill, S. 2424, exempted from Section 315(a) the “|a]ppearance by a legally qualified candidate on any newscast, news interview, news docu- mentary, on-the-spot coverage of news events or panel discussion * * *.” §. Rep. No. 562, 86th Cong., 1st Sess., 1 (1959). An exemption for debates, after having been fully considered by the committee," was not recom- 1s Id. at 2, 4 (S. 1604, S. 1929). All of the bills before the committee contained some form of the broadcaster control re- quirement quoted in text. *° See, e.g., id. at 101-105 (Mr. Stanton of CBS). '’ See, e.g., id. at 261-262 (discussion between Sen. Thur- mond and Sen. Keating); id. at 309 (statement of Dept. of Justice) ; id. at 315 (statement of American Civil Liberties Union). See also S. Rep. No. 562, supra note 7, at 15 (addi- tional views of Sen. Hartke). * The Commission argues that testimony before a commit- tee is of little value as a guide to legislative intent. Brief for respondents (hereinafter FCC br.) at 34. The Supreme Court, however, has relied on hearings as evidence of issues with Which the committee was concerned, the same purpose for 68a mended to the Senate." On the floor of the Senate the committee’s bill was presented and discussed as a measure designed primarily to reverse the Lar Daly decision by exempting news programs from Section 315. Senator Engle, however, objected that by including panel discussions among the exemptions the bill went too far beyond simply re- storing the pre-Lar Daly understanding of the equal time requirement." He therefore moved to eliminate the words “or panel discussions” from the bill. His argument to the Senate was that an exemption for panel discussions, like the exemption for debates already which I use the hearings. See American Ship Building Co. v. NLRB, 380 U.S. 300, 314-315 (1965). This concern supports giving greater weight to the committee’s decision not to in- clude an exemption for debates than would be warranted if the committee had not actively considered the question. Cf. Power Reactor Development Co. v. Int. Union of Electrical etc. Wkrs, 367 U.S. 396, 410-411 (1961) (citing as evidence that committee report’s statement “must have been inadvert- ent” fact that wituesses had complained bill would not do what report said and committee had not changed language despite these complaints). ; 1 The fact that the bill reported by the committee included an exemption for “panel discussions,” S. Rep. No. 562, supra note 7, completely refutes the Commission’s argument, FCC br. at 21-22, that debates were not specifically exempted only because the committees were focusing on types of news cover- age rather than on specific formats. See text accompanying notes 71-75 infra. 20 See note 7 and accompanying text supra. 21 Sen. Engle also noted that the exemption for news docu- mentaries was not necessary to reverse Lar Daly, but he thought “there [was] some legitimate justification’ for that exemption. 105 Conc. REc. 14450. 69a 10 rejected by the committee, would pose too great a danger of abuse of the broadcast media.” The only strong opposition to Senator Engle’s amend- ment was voiced by Senator Javits.** He identified panel ‘liscussions with face-to-face debate among candidates, urging retention of the exemption for panel discussions _ because of the importance of such debate to the political process : 2206 *® * * [P]anel discussions are something else again. News is a self-limiting factor. News must be current. It can be in the form of an interview or a news documen- tary. But it must be something of current interest; and thereby the very content of the broadcast limits the ac- cessibility of the act and the abuse of it. What about panel discussions? One can get into a panel discussion on anything. My opponent used a panel dis- cussion which he paid for, he thought it was so good. Any- one who holds public office can start a panel discussion on something or other; and merely by exposing himself to the public he gets an advantage which he should not have. I observe one other thing. Almost all the testimony was related to the matter of newscasts, not to other kinds of broadcasts. * * * co The Antitrust Division of the Department of Justice refused to go along with any extension into the field of panel discussions, public debates, and special news events. So that broadens the case. If there were merely public debates, there would not be any limitation whatsoever. So the opportunities for abuse in this particular section are those which concern me the most. * * * /d. (emphasis added). ** Sen. Pastore, the bill’s floor manager, emphasized that his main concern was overruling Lar Daly. Since the exemption for panel discussions went bevond what was necessary for oa purpose, he did not attempt to defend it. See id. at 14443, 4452. 70a 11 Mr. President, I think a word needs io be «ic about panel discussions, which are really an in tegral part of the American process of debate. Be- fore we vote on the amendment, I would like to state that it should not be adopted. I think we should preserve panel discussions, and not make the re- quirement ridiculous. I refer to the opportunity of Americans to hear face-to-face debate by opponents. * * # Let us not be wearing blinkers in terms of prob- lems we face in daily decisions, but let us realize the broad public interest which is inherent in panel discussions. Mr. President, I repeat, we are venturing into an area where we are trying to change a situation which has proved to be embarrassing. In the haste of trying to do something about that situation, let us not eliminate what I consider to be one of the great capabilities of the American people for having a knock-down, drag-out, face-to-face debate, to wit, a panel discussion which can do them the most good. 105 CoNnG. REC. 14452-14453 (emphasis added).* De- spite this plea from Senator Javits, Senator Engle’s ** Neither Sen. Javits nor Sen. Engle, see note 22 supra, distinguished between studio and nonstudio debates, and the bill reported by the committee did not require complete broad- caster control of all the arrangements as had the proposed bills. Thus the Commission’s claim that the Senate’s deletion of an exemption for debates affected only studio debates, see FCC br. at 22-23, is erroneous. In view of the Committee’s separate treatment of debates and pancl discussions, it is not clear that the senators were correct to equate the two. The important point is that, after hearing an argument in favor of the panel discussion exemp- tion phrased in terms of the value of debate between candi- dates, the Senate voted to eliminate the exemption. Interest- ingly, the first nonstudio debate among candidates broadcast nationally since the Commission’s recent ruling more closely Tila 12 amendment was accepted on a voice vote and the exemp- tion for panel discussions was eliminated from S. 2424. id. at 14453. Thus both the committee and the full Senate considered whether to include in the amendment to Section 315 an exemption for debates between candidates. Both the committee and the full Senate determined that such an exemption was not warranted. The clear basis for the full Senate’s action was a belief that an exemption for panel discussions, viewed by its one proponent as including debates between candidates, would unduly ex- yand the scope of S. 2424 beyond reversing the Com- mission’s action in Lar Daly. In concluding that can- dlidates’ debates are bona fide news events within the meaning of Section 315(a) (4), the Commission has ig- nored the Senate’s decision that such debates should not be freed of the equal time requirement. (hb) The House in 195¢.—Like its Senate counterpart, the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce considered a range of proposals for amending Section $15 following the Lar Daly decision. A proposed “Fair Political Broadcasting Act of 1959” would have exempted trom the equal time requirement appearances by a candidate “on any regularly scheduled or bona fide news- cast, news documentary, panel discussion, debate, or similar type program * * *.”* The bill also contemplated resembled a “panel discussion” than a “debate.” See Shales, Forum Without Function, Washington Post, Feb. 25, 1976, § C at 1 col. 1. * Hearings on H.R. 5389 Before a Subcommittee of the Hlouse Committee on Interstate and Foreign Commerce, 86th Cong., Ist Sess., 4 (1959) (hereinafter House Hearings) (H.R. 7122). This bill was the equivalent of the Hartke bill. See note 14 supra. 72a 13 significant additional changes in Section 315.** Another proposal was simply to exempt appearances “on any news program, including news reports and news commentaries * * *%:7 HR. 7985, introduced by the subcommittee chairman, Oren Harris, took a middle position. Under that bill, which was ultimately reported by the com- mittee to the full House, candidate appearances “on any news, news interview, news documentary, on-the-spot coverage of newsworthy events, panel discussion, or simi- lar type program * * *” were excluded from the cover- age of Section 315.** All of the bills specified that to be eligible for exemption a program must be under the exclusive control of the broadcaster. Chairman Harris opened the hearings by describing the three categories of bills to be considered. When ex- plaining his own bill he listed the exemptions it would establish, noting that for on-the-spot coverage of news- worthy events he “ha{d].in mind such events as na- tional conventions of political parties.” After this list- ing he stated, “I did not include the word ‘debate,’ in H.R. 7895 because [ think that has connotations which go far beyond matters of this kind.” Hearings on H.R. 5389 Before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess., 2 (1959) (hereinafter House Hearings). Later in the first day of the hearings Representative Harris again stated the reason for his decision not to include an exemption for debates: This bill [H.R. 7895] has been changed from H.R. 6810, 84th Congress, in only one respect. That *6'The Fair Political Broadcasting Act would, inter alia, have tied a presidential or vice-presidential candidate’s eligi- bility for equal time to a required showing of support for the candidate or his party. 27 House Hearings 3 (H.R. 5389). 78 Id. at 5. 73a 14 is, the word “debate” has been stricken out. As a [sic] said earlier, that was done purposely because I am not sure just how you could ever define what a debate is so that a broadcast station or the Fed- eral Communications Commission could follow it in its interpretation if we used that broad term. Id. at 87-88. As in the Senate committee, much of the questioning of the various witnesses was directed to developing an understanding of the extent of the proposed exemptions. Thus Representative Harris elicited from the president of the National Broadcasting Company that the exemp- tion for coverage of newsworthy events would include such events as political conventions and the opening of a Russian exhibit attended by the President and Vice President of the United States. Jd. at 87, 89. This in- terpretation of the language he had drafted was satis- factory to Representative Harris. See id. at 102. No one ever suggested that candidates’ debates, if held out- side a broadcast studio, might be “newsworthy events” within the intent of the bill. By contrast, the testimony and questioning of FCC Commissioner Ford, who unsuc- cessfully proposed an exemption for coverage of “special events,” clearly established that the author of that lan- guage intended to include debates between candidates.” E.g., id. at 93, 100. **Intervenor National Broadcasting Co. (NBC) contends that Commissioner Ford’s suggested exemption for special events “developed into” the language of § 315(a) (4). NBC br. at 18-20. This argument is rebutted by the fact that the two formulations were considered simultaneously by the House committee and treated as alternatives. The Ford sug- gestion was explicitly contrasted with the narrower pro- posals, such as H.R. 7985, to exempt only news broadcasts. _ House Hearings 99-102 (remarks of Reps. Moss and arris). 74a 15 Following testimony of members of the Federal Com- munications Commission, the committee heard from sev- eral witnesses who supported broad exemptions from the equal time provision. Virtually every one of these wit- nesses, when comparing the proposals before the com- mittee, identified failure to include debates as a key weak- ness of the Harris bill.*° The committee heard vigorous advocacy of the value of political debates as a means of informing the electorate about the candidates, and of the need for an exemption to allow broadcasters to bring debates to the public. " The only reaction to these pleas was the expression of concern by committee members that inclusion of a wide range of program types in the exempt categories would leave little vitality in the equal time 3% F.g., House Hearings 128-129, 134-135, 138, 141, 146 (Mr. Stanton, CBS); id. at 171 (Mr. Fellows, National As- sociation of Broadcasters): id. at 181-182 (Mr. McGannon, Westinghouse Broadcasting) ; id. at 184 (Mr. Butler, Demo- cratic National Committee). 31 See id. at 123-156 (testimony of Mr. Stanton of CBS). Mr. Stanton did not distinguish between studio and non- studio debates. See, e.g., id. at 134-135: Four vears ago when we at CBS first urged modifica- tion of section 315, I pointed out that only about 75,000 people actually saw and heard the great Lincoln-Douglas debates. We felt, as we fee] now, that television can provide on a nationwide basis, the modern counterpart of such great political debates, making it possible for every citizeni to see and hear the candidates debating and ecereneng themselves to the critical issues of our time. _ a . _ The enactment of H.R. 7985, if it is amended to exempt debates, and of the fair political broadcasting bills, will make possible these programs to which I now firmly commit the CBS radio and television networks, and which, I submit, will make invaluable contributions to a -quickened, informed, and intelligent democratic process. (Emphasis added.) 75a 16 requirement and give broadcasters too much discretion.* Not one member of the committee suggested that de- bates might be exempt under the Harris proposal.” The committee adhered to the decision made by Rep- resentative Harris and reported to the full House a bill which did not include an exemption for debates. Dis- “ See, c.qg., id. at 78-79 (remarks of Rep. Flynt); id. at 80-82, 112, 189 (remarks of Rep. Bennett); id. at 84 (re- marks of Rep. Moss); note 89 infra. “If anyone had believed that debates could be covered under Rep. Harris’ exemption for “on-the-spot coverage of newsworthy events,” the susyestion would surely have been made during the testimony which criticized H.R. 7985 for failing to include debates. See, e.g., id. at 146: Mr. FLYNT. Now we come to the question of par- ticular on-the-spot newscasts. Do you feel that the law would be substantially clarified if an amendment were put in to exempt news reports, newscasts, and on-the- | spot news coverage? Mr. STANTON. This wou!d be an improvement, but I think you are short-chunging yourself in not going the extra distance to include debates and discussion pro- grams. The only examples of “newswerthy events” discussed during the hearings were political conventions, id. at 2, 88, 102, 156, and opening of the Russian exhibit at the New York Coli- seum, id. at 89. In view of the deliberate decision of the bill’s drafter not to include debates, this unquestioning acceptance of the con- clusion that debates were not covered by H.R. 7985 deserves great weight. See Foremost-McKesson, Inc. v. Provident Scenritics Co., U.S. - , 44 U.S. L. WEEK 4056, 4060-4 vol (Jan. 13, 1976) ; cf. note 18 supra. ‘The committee did make some changes in the Harris bill, mostly in an effort to reduce its impact on the equal time principle. Thus the committee deleted the exemptions for news documentaries and panel discussions because “it was Felt thet theoe forms ore difficult to define, and without proper 76a 17 cussion on the floor of the House contains no suggestion on the part of any representative that debates were excluded from the equal time provision. The Commission, however, contends that none of this history demonstrates that Congress intended that debates between candidates be subject to the equal time requirement: * * * During the House of Representatives’ floor debate, Congressman Harris noted that a number 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 con- sidered 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 other news exemptions as well. definition they might permit an unnecessarily broad exemp- tion from the equal-time requirement.” H.R. Rep. No. 802, supra note 7, at 12. Similarly, the committee omitted the “broad and indefinite category” covered by the phrase “or similar type progran.” and substituted the words “news events” for “newsw rthy events.” The latter change was made because [i]t was felt that the language of the introduced bill in this regard [newsworthy events] was unnecessarily vague and might result in a greater weakening of the equal-time requirement than would be desirable. Id. at 13. In addition to these changes designed to tighten the bill, the committee also replaced the “limiting require- ment” that the broadcaster or network determine the broad- cast’s format, production, and participants with the “more appropriate” requirement that the candidate appearance be “incidental to the presentation of news.” 7d. 77a 18 Aspen Institute Program on Communications, 55 FCC 2d 697, 705, 35 P & F Rapio Rec.2p 49, 60, JA 141, 153 (emphasis added) (hereinafter Aspen). See also majority op. at n.17; FCC br. at 24-25. Representative Harris’ statement cannot bear the weight the Commission places on it, for it has no ref- erence to debates. The paragraphs immediately pre- ceding the paragraph which the Commission and its sup- porters have chosen to quote make clear that Representa- tive Harris was referring, not to debates, but to news documentaries and panel discussions: _The Subcommittee on Communications and Power discussed the various bills at considerable length in executive session, and reported to the full committee H.R. 7985, but limited the exemption to newscasts (including news interviews) and on-the-spot cover- age of newsworthy events. In other words, Mr. Chairman, the Subcommittee and the full committee decided to eliminate as sepa- rate categories news documentaries, panel discus- sions, and similar tyne programs as such. The com- mittee felt—with which I agreed—that these cate- gories are simply too vague and cannot be defined with sufficient definiteness. 105 Conc. Rec. 16229 (emphasis added). Sze also id. at 17782." " See also H.R. Rep. No. 802, svpra note 7, at 12-18. There is no suggesticn in the legislative history that any- one in the House believed, as did Sens. Engle and Javits, see note 24 and accompanying text svpra, that panel discussions and debates were interchangeable descriptions of the same type of occurrence. But even if this confusion had existed in the House, so that Rep. Harris’ statement could be read as referring to debates, the statement would not support the Commission’s conclusion that candidates’ debates are “bona fide news events” if they occur outside a studio and a broad- custer chooses in wood faith to put them on the air. Rep. 78a 19 (c) Summary of 1959 Legislative History.—Both the Senate and the House committees considered bills which would have exempted candidates’ debates from the equal time provision. Both committees heard vigorous testi- mony about the value and importance of providing an exemption for debates. Both committees refused to do so. On the floor of the Housre no one suggested that debates were or should be included within the exemptions. On the floor of the Senate an exemption permitting de- bates was eliminated by voice vote. I submit that this history shows a clear congressional intention, based on full consideration of the question, not to allow broad- east of candidates’ debates free of the requirement that equal time be provided to all legally qualified candidates. Congress intended this legislative history to serve as the authoritative guide for the Commission.” By substituting its own judgment for the clear mandate of Congress as shown by the legislative history, the Com- mission has claimed power it does not possess. Harris and the committee excluded debates and the other program categories from the bill because they were con- cerned to avoid broad, vague exemptions. Sce pp. 13-14 & note 34 supra. It belittles this concern to conclude that the de- leted program categories can be made into exempt “news events” simply by the existence of a nonbroadcaster spon- soring organization. {T]}here can be no valid distinction, under Section 315, between two broadcast programs, both involving the appearance of opposing political candidates and other- wise identical in all material res ects, simply on the basis that one program was staged by a_ broadcaster under conditions satisfactory to the candidates, and the other program was staced by a third party and covered by the broadcaster upon invitation, also under conditions satisfactory to the candidates. Wyckoff, supra note 11, 40 FCC at 372, 24 P & F Rapio REG. at 403 (footnote omitted). % See, e.g., 105 CONG, REC. 16228-16230 (remarks of Rep. Harris). 79a 20 (d) Subsequent Legislative Iistory.—The jarties be- fore us have extensively—one might even say exhaus- itvely~—briefed and argued the significance properly at- tributable to congressional action and inaction regarding Section 315 subsequent to the 1959 amendment. The Commission and its supporters, as well as the division majority, cite cases that warn against over-reliance on legislative proceedings subsequent to enactment of the law whose interpretation is at issue.’ Petitioners and their supporters point to cases that place great weight on such subsequent events." In view of the clarity of congressional purpose I find in the history of tne 1959 amendment itself, I see no need to attempt to formulate a general theory of the importance of subsequent legisla- tive history. It is, however, clear that in appropriate circumstances” the action and inaction of a later Con- “ B.g., FCC br. at 35, 38-42; CBS br. at 31-36; majority op. at 26. Zuber v. Allen, 396 U.S. 168 (1969), and Power Reactor Development Co. v. Int. Union of Electrical ete. Wkrs, supra note 18, are the two most frequently cited cases. “ See, e.g., Chisholm br. at 65; brief for petitioner Demo- cratie National Committee (hercinafter DNC br.) at 48-52. Petitioners place their greatest reliance on NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525 (1959); and Kay v. FCC, 143 U.S.App.D.C. 223, 443 F.2d 638 (1970). "The Supreme Court has suggested that subsequent con- gressional action er inaction leaving untouched an admin- istrative action deserves the greatest weight when there is a congressional committee charged with and engaged in the duty of exercising continuous and detailed oversight. See Zuber v. Allen, supra note 37, 396 U.S. xt 185-186 n.21; Power Re- actor Development Co. v. Int. Union of Electrical etc. Wkrs, supra vote 18, 367 U.S. at 408. Congressional changes in other aspects of the relevant statutory provision, when com- hined with convressional awareness of the administrative action, also add weight to the implication that Congress did net reverse the disputed action because it agreed with that 80a 21 gress can be “an added circumstance which has some persuasive weight * * *,” Kay v. FCC, 143 U.S.App.D.C. 223, 231, 443 F.2d 638, 646 (1970), with regard to the intended meaning of a statute. Since circumstances in this case are appropriate for according at least “some persuasive weight” to events after 1959,*’ I will briefly consider later congressional treatment of Section 315(a). Both sides attach the greatest importance to interpret- ing the action of the second session of the 86th Congress —the Congress which wrote the 1959 amendment—in sus- pending Section 315(a) for the 1960 presidential cam- paign."' See S. J. Res. 207, 86th Cong., 2d Sess. (1960) (Pub. L. No. 86-677, 74 Star. 554). Petitioners main- action. Sve NLRB v, Bell Aerospace Co., supra note 38, 416 U.S. at 288; Farmers Educational & Cooperative Union v. WDAY, Inc., supra note 38, 360 U.S. at 533 & n.15. * Administration of the equal time requirement is, nat- urally, an area of great concern to the elected politicians in Congress. Sea text accompanying notes 85-86 infru. Accord- ingly, congressional committees maintain careful vigilance over the Commission’s actions regarding § 315, see notes 12 supra, 48 infra, and the Commission is required to call its imp»rtant equal time decisions to Congress’ attention. See p. 6 infra. The majority denigr gressional con- cern as “technical” awar the Commission’s actions, majority op. at 27, the Supreme Court has recognized that Congress’ interest in § 315 is significant. See Farmers Educational & Cooperative Union v. WDAY, Inc., supra note 38, 360 U.S. at 533 & n.15. *‘The 1960 suspension is important because the congres- sional understanding of the need for and impact of that sus- pension indicates what the Congress that passed the 1959 amendment believed not to be covered by that amendment. It is also important because the Commission relied on the 1960 suspension when it ruled in 1962 that debates could not be considered “bona fide news events.” See The Goodwill Stetion, Inc., supra note 11, 40 FCC at 363-364; Wyckoff, supra note 11, 40 FCC at 372. 8la 22 tain that since the purpose of this suspension was to al- low the “Great Debates” between Democrat John F.. Ken- nedy and Republican Richard M. Nixon, passage of the Joint iesolution constitutes an authoritative congres- sional declaration that debates were not exempted by the 1959 amendment."’ The Commission’s response, accepted by the majority here, is twofold. First, the Commission argues that “the 1960 legislation had no special relevance to the coverage of debates |since t|he legislation was in- tended to apply to any appearance by the Presidential candidates regardless of format|.|’ 55 FCC 2d at 706, 35 P & F RApio ReEG.2p at 60, JA 153 (emphasis in orig- inal). See majority op. at 24-25. Second, the Commission contends that Congress enacted the suspension because the Commission had not yet acted “to clarify the mean- ing of the exemptions.” 55 FCC 2d at 706, 35 P & F RADIO ReEG.2D at 60, JA 154. See majority op. at 25. Neither of these arguments can withstand examination. Although it is true that the 1960 suspension did not spe- cify that debates must be held, it is also clear that de- bates were expected to be one result of the Joint Resolu- tion. See 106 ConG. Rec. 14473 (1960) (remarks of Sena- tor Pastore) ; id. at 17036-17037 (remarks of Representa- tive Harris); id. at 17039 (remarks of Representative Springer). Moreover, the broadcasters told Congress they ~ could not _practieably present debates unless Section 315 were suspended, and Congress acted on that basis. See S. Rep. No. 1539, 86th Cong., 2d Sess., 3-5 (1960); 106 Conc. Rec, at 14473 (statement of Senator Pastore) ; id. at 17037 (remarks of Representative Harris); id. at 17039 (remarks of Representative Springer). That the suspension additionally allowed programs other than debates, or that programs already exempt under the 1959 amendnient were also presented, does not affect the valid- ity of the inference, clearly supported by the legislative history of the suspension provision, that Congress believed “Chisholm br. at 40-44, 82a suspension of Section 315(a) was necessary to allow broadeast of debates between the two major candidates for the presidency. The Commission's second argument depends on its asser- tion that when Senator Pastore said, “Not enough time has elapsed to permit full evaluation of [the 1959} amendment,” he meant to say that the Commission had not yet had time to define the scope of the exemptions. I see nothing in the context “ or wording of Senator Pas- tore’s remarks to support this interpretation of his state- ment. The majority, apparently recognizing this difficulty, rewords the argument: * * * (Tlhe Senate Report accompanying the Joint Resolution '''! stated that one reason for the suspension was that the Commission had not yet had sufficient time to interpret the new exemptions; con- sequently, the across-the-board suspension was de- "See 106 Conc. Rec. 14473 (1960); S. Rep. No. 1539, 86th Cong., 2d Sess., 2 (1960). **S. Rep. No. 1539, swpru note 43, uses the same language as Sen. Pastore, who apparently based his statenient to the Senate on the committee report. The relevant portion of the report states: Last year’s amendments to the Communications Act were the first major modifications of the equal oppor- tunity provisions since the adoption of the Radio Act in 1927. Not enough time has elapsed for a full evalua- tion of this amendment. However, this liberalization should lead to a fuller and more meaningful news cover- age of the actions and appearances of legally qualified candidates. Your committee recognizes that the changes of the last session have not been perfect. It was a cautious move into an uncharted area but sound, com- monsense administration. on the part of the Federal Communications Commission is essential to avoid the obstacles that may lead to abuse. Id. at 2. 83a 24 signed, at least in part, to provide time for neces- sary evaluation of the effects of the amendments. Majority op. at 25. In addition to misstating the Senate report,” this revised version is illogical: suspension of the entire equal time provision for presidential candidates would not facilitate evaluation of the impact of amend- ments which created some exemptions to that provision. I therefore conclude, as the Commission itself concluded in its prior opinions,’ that the 1960 suspension of Sec- tion 315 (a) provides additional evidence that the 86th Congress believed that debates were not exempted from the equal time requirement by the 1959 amendment." Later Congresses also appear to have shared this under- standing of Section 315(a). However, in view of the length of this dissent and of the cumulative nature of the support to be drawn from the post-1960 history, I will rest on the citations to the legislative history in the margin.** * See note 44 supra. *° See note 41 supra. ** The Commission’s inability adequately to explain why it has rejected the view of the 1960 congressional action it found convincing a mere two years after the event, see note 41 supra, is indicative of the Commission’s failure to provide a sufficient explanation for reversing its prior holdings. See Part II-B infra. *“Since 1960 Scnate and House committees have held a total of at least 12 hearings dealing with political broad- casting and § 315. See Chisholm br. at 44-60. In 1971, see Pub. L. No. 92-225, $$ 103(a) (1), (2) (B), 104(c), 86 STAT. 4, 7, and again in 1974, see Pub. L. No. 93-443, § 402, 88 STAT. 1291, Congress amended § 315 without disturbing the Commission’s rulings. While these !egislative actions may not he technical reenactments, see FCC br. at 39-42, they provide some support for the proposition that Congress agreed with the Commission’s position. See NLRB v. Bell Aero- space Co., supra note 38, 416 U.S. at 275, 288 (noting that 84a 25 2. Press Conferences.—In contrast to its explicit con- cern with candidates’ debates, the 86th Congress did not focus on press conferences when considering the 1959 amendment. The absence of discussion of press confer- ences in the 1959 legislative history *’ does not, however, mean that the Commission is free now, particularly after its long-standing decision to the contrary and its re- peated subsequent unsuccessful efforts to have Congress change Section 315, to determine that candidates’ press conferences, as such,” are bona fide news events Congress “let stand” NLRB's definition of “managerial em ployees” when it passed the Labor-Management Reporting and Disclosure Act, 73 Stat. 519 (1959), which neither re- enacted the National Labor Relations Act nor amended the latter Act's definitional provisions). ’ Press conferences were not explicitly considered in the discussion of the 1969 suspension of the equal time provision for the presidential campaign, Following the Commission's decision in Colvmbhia Broadcasting Sustem, Tne., supra note 11, of which Congress was officially informed in the Com- mission’s annusl report, FEDERAL COMMUNICATIONS CoM- MISSION, 31ST ANNUAL REPORT FOR THE FISCAL YEAR 1965 at 86, the subsequent history of congressional acquiescence is the same as for the dchate decisions. See note 48 supra. " The Commission has long recognized an exception to § 315 for speeches to their constituents by clected leaders, who happen to be candidates for reelection, concerning cur- rent events of critical importance, Ri publican National Com- mittee, 40 FCC 408, affirmed by equally divided -ourt, sub nom, Goldwater v. FCC, No. 18,963 (D.C. Cir. Oct. 5 1964), cert. denied, 379 U.S. 893 (1964) (presidential adc. +s con- cerning Chinese nuclear explosion and Soviet leadership change); Public Notice 38387, 40 FCC 276 (1956) (presi- dential address concerning Suez crisis). An analogous ex- emption for press conferences triggere [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0329%3A1. Public record. Not legal advice.