Appendix — CBS v. Federal Communications Commission
Supreme Court brief1981
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| FILED
AUG1 1 1980
80-207
Nos.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
CBS INC.,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, et al.,
Respondents.
AMERICAN BROADCASTING COMPANIES, INC.,
" Petitioner,
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, et al.,
Respondents.
NATIONAL BROADCASTING COMPANY, INC.,
¥ Petitioner,
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, et al.,
Respondents.
APPENDICES TO PETITIONS
FOR WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
(List of counsel on inside cover)
Of Counsel:
RALPH E, GOLDBERG
CBS Ince.
51 West 52 Street
New York, New York 10019
JOSEPH DEFRANCO
CBS Ine.
1800 M Street, N.W.
Washington, D.C. 20036
EVERETT H. ERLICK
ROBERT J. KAUFMAN
American Broadcasting
Companies, Inc.
1330 Avenue of the Americas
New York, New York 10019
HOWARD MONDERER
Vice President, Law
National Broadcasting
Company, Inc.
1800 K Street, N.W.
Washington, D.C. 20006
J. ROGER WOLLENBERG
JOEL ROSENBLOOM
TIMOTHY B. Dyk
THOMAS W. WHITE
WILMER & PICKERING
1666 K Street, N.W.
Washington, D.C. 20006
(202) 872-6000
Counsel for Petitioner CBS Inc.
JAMES A. MCKENNA, JR.
THOMAS N. FROHOCK
CARL R. RAMEY
DENNIS P. CORBETT
MCKENNA, WILKINSON &
KITTNER
1150 17th Street, N.W.
Washington, D.C. 20036
(202) 861-2600
Counsel for Petitioner American
Broadcasting Companies, Inc.
FLOYD ABRAMS
DEAN RINGEL
PATRICIA A, PICKREL
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
(212) 825-0100
Counsel for Petitioner National
Broadcasting Co., Inc.
INDEX OF APPENDICES
Appendix A—Opinion of the Court of Appeals in
CBS Inc. v. FCC, Nos. 79-2403, 79-2406,
79-2407 (March 14, 1980) .........0220000000....
Appendix B—Memorandum Opinion and Order of the
Federal Communications Commission in
Carter-Mondale Presidential Committee,
Inc. (November 21, 1979) ........................
Appendix C—Memorandum Opinion and Order of Fed-
eral Communications Commission on
Petitions for Reconsideration and Stay
in Carter-Mondale Presidential Com-
mittee, Inc. (November 28, 1979) ...........
Appendix D—Order of Court of Appeals Denying Peti-
tions for Rehearing (May 15, 1980) .......
Appendix E—Order of Court of Appeals Denying Sug-
gestions of Rehearing En Banc (May 15,
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Appendix F—Order of Mr. Chief Justice Burger
Granting Extension of Time in Which
to Petition for a Writ of Certiorari
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Appendix G—Constitutional Provision and Statutes
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Page
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APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 79-2403
CBS, ING.,
Petitioner
V.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
Respondents
CARTER/MONDALE PRESIDENTIAL COMMITTEE, INC.,
NATIONAL ASSOCIATION OF BROADCASTERS, ET AL.,
Intervenors
No. 79-2406
AMERICAN BROADCASTING COMPANIES, INC.,
Petitioner
V.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
Respondents
NATIONAL ASSOCIATION OF BROADCASTERS,
CARTER/MONDALE PRESIDENTIAL COMMITTEE, INC.,
Intervenors
2a
No. 79-2407
NATIONAL BROADCASTING COMPANY, INC.,
Petitioner
V.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
Respondents
CARTER/MONDALE PRESIDENTIAL COMMITTEE, INC.,
NATIONAL ASSOCIATION OF BROADCASTERS, ET AL.,
Intervenors
Petitions for Review of Orders of the
Federal Communications Commission
Argued January 10, 1980
Decided March 14, 1980 [Judgment Entered This Date]
Timothy B. Dyk, with whom J. Roger Wollenberg,
Thomas W. White and Joseph DeFranco were on the
brief, for petitioner in No. 79-2403.
Thomas N. Frohock, with whom James A. McKenna,
Jr. and Carl R. Ramey were on the brief, for peti-
tioner in No. 79-2406.
Floyd Abrams, with whom Dean Ringel, George Free-
man and Howard Monderer were on the brief, for peti-
tioner in No. 79-2407.
Robert R. Bruce, General Counsel, Federal Communica-
tions Commission, with whom David J. Saylor, Deputy
8a
General Counsel, Terry Michael Banks, Associate General
Counsel, C. Grey Pash, Jr., Counsel, Federal Communica-
tions Commission, and John J. Powers, III, Attorney, De-
partment of Justice, were on the brief, for respondents.
John D. Lane, with whom Ramsey L. Woodworth,
Howard K. McCombs and Anthony F. Essaye were on
the brief, for intervenor, Carter/Mondale Presidential
Committee.
Erwin G. Krasnow was on the brief for intervenor,
National Association of Broadcasters.
Heidi P. Sanchez was on the brief for Amici Curiae,
National Citizens Committee for Broadcasting, et al., urg-
ing affirmance.
Bruce E. Fein, Attorney, Department of Justice, also
entered an appearance for respondent, United States of
America.
Jerry W. Markham also entered an appearance for in-
tervenor, Carter/Mondale Presidential Committee.
Before: BAZELON, Senior Circuit Judge; TAMM, Cir-
cuit Judge; and MARKEY,* Judge, United
States Court of Customs and Patent Appeals.
Opinion for the Court filed by Senior Circuit Judge
BAZELON.
Concurring opinion filed by Circuit Judge TAMM.
BAZELON, Senior Circuit Judge: In these consolidated
appeals, the three major television networks seek review
of orders by the Federal Communications Commission
(FCC) finding that they had failed to fulfill their obli-
gation under Section 312(a) (7) of the Communications
Act? to permit “purchase of reasonable amounts of time
* Sitting by designation pursuant to 28 U.S.C. § 293(a).
147 U.S.C. §312(a) (7) (1976). Section 312(a) (7) was
added to the Communications Act of 1934 as part of the Fed-
4a
for the use of a broadcasting station by a legally quali-
fied candidate for Federal elective office on behalf of his
candidacy.” ?
In October, 1979, the Carter-Mondale Presidential
Committee (CMPC) asked that the three networks make
available to it a half-hour of television time in early De-
cember, 1979. The networks declined to do so. CMPC
filed a complaint with the FCC charging a violation of
Section 312(a) (7). The Commission concluded that the
response of each of the networks to the Committee’s re-
quest to purchase time was unreasonable because the net-
works had failed to apply the proper legal standard in
denying the request.* It ordered the networks to comply
with the requirements of the Act. The networks ap-
pealed. We affirm.
eral Election Campaign Act of 1971. Title I of that 1971
bill, which contained Section 312(a) (7), was known as the
Campaign Communications Reform Act and was the broad-
cast reform section of the law.
242 U.S.C. §312(a)(7) (1976). The relevant parts of
Section 312 read in full:
(a) The Commission may revoke any station license
or construction permit...
(7) for willful or repeated failure to allow reasonable
access to or to permit purchase of reasonable amounts of
time for the use of a broadcasting station by a legally
qualified candidate for Federal elective office on behalf
of his candidacy.
3’ Carter-Mondale Presidential Committee, Inc., —— FCC
2d —— (FCC 79-750, Nov. 21, 1979) (herein Order I),
reconsideration denied, ——- FCC 2d (FCC 79-773, Nov.
28,1979) (herein Order II). Order I is found in the Appendix
(App.) at 114; Order IT is at 305.
5a
I. THE SITUATION
On October 11, 1979, Gerald M. Rafshoon, President of
the Carter-Mondale Presidential Committee, wrote each
of the three major television networks, asking that they
make available a 30-minute program slot between 8:00
PM and 10:30 PM on either December 4, 5, 6 or 7.4
4 The text of Mr. Rafshoon’s letter to the three networks
was identical :
On behalf of the Carter/Mondale Presidential Committee,
Inc., I am requesting availabilities for a thirty (30)
minute program on ABC between 8:00 p.m. and 10:30
p.m. E.S.T. on December 4, December 5, December 6,
or December 7, 1979. This program, to be run in con-
junction with an announcement concerning his candidacy
by President Carter for the Democratic nomination for
President, consists of a documentary outlining the Presi-
dent’s record and that of his administration. At the
time this program is aired, it may be assumed that Presi-
dent Carter will be a legally qualified candidate under the
Communications Act of 1934, as amended, and that the
President would appear on the program.
As you know, the first official contest to select delegates
to the Democratic National Convention occurs January
21, 1980, in Iowa, which is 47 days after December 7,
1979, our last requested date for availabilities.
Unlike all previous Presidential election years, the news
media has chosen to focus enormous attention on the
Florida Caucus (October 13, 1979) and Convention (No-
vember 16-18, 1979) as well as other aspects of the 1980
campaign. As illustration, I have noted that in the six-
week period from September i through October 9, 1979,
ABC devoted 51 minutes, 22 seconds to the 1980 cam-
paign; CBS devoted 51 minutes, 22 seconds to this sub-
ject; and NBC devoted 70 minutes. Therefore, cur request
for the above time seems eminently appropriate in view
a»
6a
CMPC intended to present a documentary outlining
President Jimmy Carter’s record and that of his adminis-
tration. The program was to be presented just after
the President’s formal announcement of his candidacy,
and it was designed to set the tone for the President’s
campaign.
The networks declined to make the requested time
available—saying in essence that it was too much time,
too soon in the race. CBS offered to make two 5-minute
segments available; one in prime time (10:55 PM) on
December 8, and one in the daytime class.’ ABC told
of the escalating political climate already generated by
both print and broadcast media.
I will expect to hear from one of your sales representa-
tives within the next week regarding a selection of times
in order that we may choose a mutually agreeable date.
App. at 11-12.
5 The letter to Mr. Rafshoon from Raymond E. Dillon,
Director of Political Sales at CBS, was dated October 17,
1979, and read:
Dear Mr. Rafshoon:
This is in response to your request that the CBS Tele-
vision Network make available for purchase by the
Carter/Mondale Presidential Committee, Inc., a half-hour
program in prime time to be broadcast between 8:00 and
10:30 PM EST on December 4, 5, 6 or 7, 1979.
Because of the large number of present potential candi-
dates for the Republican and, Democratic presidential
nominations, we are at this time unable to accede to
your request to purchase a half-hour program. We note
that three Democrats and eleven Republicans have al-
ready announced, or may reasonably be expected shortly
to announce, their presidential candidacies; indeed two
candidates for the Republican presidential nomination
have already requested to purchase half-hour programs
Ta
CMPC that it had not yet reached a decision as to when
it would commence the sale of political time for the 1980
on the CBS Television Network, and their requests have
been declined on the same basis as indicated below.
In light of the above circumstances, were we to provide
the half-hour program you seek, accommodating potential
requests for equal treatment from other candidates for
presidential nomination would involve massive disrup-
tions of the regular entertainment and information
schedule of the CBS Television Network. Accordingly,
we must respectfully reject your request.
We are, however, prepared to make one 5-minute seg-
ment in prime time and one 5-minute daytime segment
available for purchase by your committee. We note that
this is the same offer made to the Republican candidates
referred to above in response to their requests to pur-
chase half-hour time periods.
While we are unable to make available time on the dates
you have specified, we are able to offer for your pur-
chase a 5-minute period on December 8 between ap-
proximately 10:55 and 11:00 PM. We will also provide
a specific 5-minute daytime availability for your pur-
chase on request.
Since it is CBS’ policy to sell time only to announced
candidates for public office, this offer is, of course, con-
ditional upon President Carter’s having announced, or
using the time purchased to announce, his presidential
candidacy.
If you are interested in purchasing such a program or
programs, please notify us promptly since substantial
lead time of approximately four to five weeks is necessary
for the editing required to accommodate program seg-
ments of this length.
Very truly yours,
App. at 19-20.
8a
Presidential campaign, but that it would do so shortly.®
It subsequently indicated that it would begin such cover-
age in January, 1980." NBC simply indicated that it was
not prepared to sell time for political programs in De-
cember, a month “too early in the political season for
nationwide broadcast time to be made available for paid
political purposes.” ®
6 The letter to Mr. Rafshoon from Charles C. Allen, Vice
President for Sales Administration at ABC, was dated Oc-
tober 23, 1979, and read:
Dear Mr. Rafshoon:
This is to confirm my oral response given on October 16th
to your letter of October 11, 1979 to Mr. Elton H. Rule,
President of American Broadcasting Companies, Inc.,
requesting air time for the Carter/Mondale Presidential
Committee, Inc. on December 4, 5, 6 or 7, 1979.
As we discussed, the ABC Television Network has not
reached a decision as to when it will start selling political
time for the 1980 Presidential campaign, and, accord-
ingly, we are not in a position to comply with your re-
quest. As I mentioned on the telephone, I believe that
later this year a decision will be made to make political
time for the Presidential campaign available on ABC-
TV early next year.
It was a pleasure speaking with you last week.
Sincerely yours,
App. at 17.
7 Letter of Counsel for American Broadcasting, Inc., to the
Chief of the Complaints and Compliance Division of the
Federal Communications Commission, November 5, 1979.
App. at 29.
8’ The letter to Mr. Rafshoon from Joseph J. Iaricci, Vice
President for Sales and Administration at NBC, was dated
October 23, 1979, and read:
9a
On October 29, 1979, CMPC filed with the FCC a com-
plaint charging that the networks had violated their ob-
ligation to provide “reasonable access” pursuant to Sec-
tion 312(a) (7). At an open meeting on November 20,
1979, the Commission found by a four-to-three vote that
the networks had violated Section 312(a)(7). It issued
a detailed Memorandum Opinion and Order (Order I)
the next day ® directing the networks to indicate by No-
Dear Mr. Rafshoon:
This is in response to your letter of October 11, 1979 to
Mr. Fred Silverman, on behalf of the Carter/Mondale
Presidential Committee, Inc., requesting 30-minute avail-
abilities on NBC between 8:00 and 10:30 PM, EST, on
December 4, 5, 6 or 7, 1979.
We have evaluated your request carefully. Based upon
our experience with past campaigns, we believe it is too
early in the political season for nationwide broadcast
time to be made available for paid political purposes. In
addition, we believe that honoring your request at this
early stage of the Presidental campaign would require
NBC to honor similar requests from a number of other
Presidential aspirants. The impact of such an undertak-
ing at this time is, of course, a significant factor in our
decision.
Insofar as the nomination process is now focused on
political activities in individual states like Iowa, you
may wish to contact stations serving those particular
states.
Please be assured that NBC News will continue to cover
important and newsworthy aspects of President Carter’s
political activities.
Very truly yours,
App. at 19.
® Carter-Mondale Presidential Committee, Inc., ——- FCC2d
(FCC 79-750, Nov. 21, 1979). App. at 114.
In dissent, Commissioner Lee argued that the Commis-
sion’s decision prevented the networks from exercising “their
10a
vember 26, 1979, how they intended to fulfill their obli-
gation under the Act.’
The networks all sought reconsideration of the Com-
mission’s decision. Their reconsideration petitions were
denied, however, and on November 28, 1979, the Com-
mission issued a second Memorandum Opinion and Order
(Order II)" clarifying its decision of the previous week.
Order II set November 29, 1979 as the deadline by which
the networks were required to file their plans for com-
pliance with the statute.
On November 28, 1979, the networks petitioned this
court for review of the FCC orders.’ They also requested
legitimate editorial judgment by rejecting the access request
because of its prematurity.” App. at 140. He concluded
that, therefore, the decision was “a serious abuse of the
Commission’s discretion.” Jd. He later stated that he thought
the majority’s approach created “the appearance of gov-
ernmeat control over programming.” Jd. at 338.
Commissioner Washburn wrote in dissent that the majority
opinion would stand for the proposition “that the candidate’s
own determination of his needs is overriding.” App. at 142.
The opinion represented “the FCC’s interfering with the dis-
cretion of the broadcasters and substituting our judgment
for theirs.” Id. This, he later said, “destroy[ed] the delicate
balance between assuring broadcasters’ independence of
journalistic discretion, affording increased opportunities for
political discussion by candidates, and informing the elec-
torate.” Id. at 339.
FCC 2d at ——-; App. at 136.
11 Carter-Mondale Presidential Committee, Inc., —— FCC
(FCC 79-773, Nov. 28, 1979). App. at 305.
12 The National Association of Broadcasters intervened in
support of the networks. One amicus brief was submitted
by the Carter-Mondale Presidential Committee, Inc. in sup-
10
2d
lla
the court to stay the FCC orders pending such review,
a request which we granted.
For reasons external to the campaign (primarily the
perceived need to focus national attention on the plight
of the American hostages in Iran), the Carter-Mondale
Committee determined to postpone to early January the
program it had planned to broadcast during the period
December 4 to 7. It was still felt, however, that some time
was needed in conjunction with the President’s announce-
ment of his candidacy. Accordingly, CMPC sought and
subsequently obtained from CBS the purchase of five
minutes of time on December 4. It also sought and ob-
tained from ABC and NBC offers of time for a 30-minute
program in early January, and the ABC offer was ac-
cepted. Throughout these negotiations CMPC, as well as
the networks, reserved all rights relating to this appeal.
II. THE EXISTENCE OF AN AFFIRMATIVE RIGHT OF
ACCESS FOR CANDIDATES SEEKING
FEDERAL ELECTIVE OFFICE
In the early days of this nation, political campaigns—
even presidential campaigns—were relatively simple af-
fairs. Campaigning took the form of speeches “from
stump and pulpit, of debate in the highly partisan press,
of private correspondence, and of persuasive activities on
election day.” 7* Near the close of the nineteenth cen-
port of the FCC. Another amicus brief was submitted jointly
by the National Citizens Committee for Broadcasting, the
National Black Media Coalition, Americans for Democratic
Action, the United Food & Commercial Workers International
Union, Stewart Rawlings Mott, The Anderson for President
Committee, James L. Buckley, the National Education Asso-
ciation, Rep. Albert Gore, Jr., Rep. Bill Frenzel, and Jerome
Barron in support of the FCC.
13 A. HEARD, THE Costs OF DEMOCRACY 401-06 (1960).
12a
tury, however, as printing presses became more common
and the price of paper decreased, the “era of campaign
literature” began.‘ Radio was first used in the 1924
campaign: Calvin Coolidge spent $120,000 for radio
time; his opponent, John W. Davis, spent $40,000.% By
1928, it was the most important campaign medium.*
Television was a factor in the 1948 election: Republican
rivals Harold E. Stassen and Thomas E. Dewey con-
ducted a television debate before the Oregon primary.
By the 1952 campaign, presidential candidates were
spending millions of dollars on television.’ Today, there
can be no doubt that we are in the “era of television
campaigning.” ** Indeed, since 95 percent of our people
operate a television set for an average of over five hours
a day,’® and 60 percent of them rely primarily on tele-
vision for news,” it would be hard to overestimate the
importance of television to our political processes. It is
undisputed that “[f]lor presidential and senatorial can-
didates, the television is a necessity.” **
14 Wick, The Federal Election Campaign Act of 1971 and
Political Broadcast Reform, 22 De Paul Law Review 582
(1973).
15R, MACNEIL, THE PEOPLE MACHINE 127 (1968).
16 Jd,
17 Td, at 127-28.
18 Wick, The Federal Election Company Act of 1971 and
Political Broadcast Reform, 22 De Paul Law Review 582
(1973).
19 TWENTIETH CENTURY FUND, VOTERS’ TIME, REPORT OF
THE TWENTIETH CENTURY FUND COMMISSION ON CAMPAIGN
COSTS IN THE ELECTRONIC ERA 6 (1969).
20S. MICHELSON, THE ELECTION MIRROR 25 (1972).
21 Wick, The Federal Election Company Act of 1971 and
Political Broadcast Reform, 22 De Paul Law Review 583
(1973).
13a
Against this backdrop, Congress passed the Federal
Election Campaign Act of 1971, including as one of its
four Titles the Campaign Communications Reform Act
(Title I). Title I contained three significant provisions:
(1) the FCC was empowered to revoke a station’s license
“for willful or repeated failure to allow reasonable access
to or permit purchase of reasonable amounts of time for
the use of a broadcasting station by a legally qualified
candidate for federal elective office on behalf of his can-
didacy;” *? (2) during a specified period before a pri-
mary or general election, a broadcast station was not
permitted to charge a legally qualified candidate for any
public office a fee in excess of-its “lowest unit charge. . .
for the same class and amount of time for the same
period ;” ** and, (3) in using the communications media,
candidates for federal elective office were not permitted
to exceed established spending limits.* The first of these
provisions was codified as Section 312(a) (7) and is the
basis of this litigation.
The networks argue that Section 312(a)(7) did not
create a new right of access for federal candidates. They
contend that the statute merely codified FCC policies de-
veloped prior to 1971 under the public interest standard.
They cite as support for this proposition dictum from the
Supreme Court decision in Columbia Broadcasting Sys-
tem, Inc. v. Democratic National Committee:
In 1959, as noted earlier, Congress amended
§ 315(a) of the Act to give statutory approval to
the Commission’s Fairness Doctrine. Very recently,
Congress amended § 312(a) of the 1934 Act to au-
thorize the Commission to revoke a station license
2247 U.S.C. §312(a) (7) (1976).
2347 U.S.C. § 315(b) (1) (1976).
2447 U.S.C. §801(1), repealed Pub. L. 93-443, title II,
§ 205 (b), Oct. 15, 1974, 88 Stat. 1278 (1976).
l4a
“for willful or repeated failure to allow reasonable
access to or to permit purchase of reasonable amounts
of time for the use of a broadcasting station by a
legally qualified candidate for Federal elective office
on behalf of his candidacy.” This amendment essen-
tially codified the Commission’s prior interpretation
of § 315(a) as requiring broadcasters to make time
available to political candidates.*
On the other hand, the Commission and amici argue that
the plain meaning of the statutory language and the
statute’s legislative history indicate that Congress did
create in Section 312(a)(7) a new right of access for
federal candidates. ,
The question is whether Section 312(a) (7) creates a
right in candidates for federal elective office to advocate
their candidacies by direct broadcast communication to
the electorate. Such a right is properly called an affirma-
tive right of access. It exists regardless of the actions of
the actions of the broadcaster. By contrast, a contingent
right of access must be activated by some prior event.”*
Access achieved under the equal time provision of Section
315,77 for example, is a contingent right of access. Our
study of the plain language of Section 312(a) (7) and
our review of the legislative history of the provision leads
us to conclude that Section 312(a)(7) did not merely
codify prior FCC policy and that it did create a new
right of affirmative access for candidates to federal elec-
tive office.
25412 U.S. 94, 113 n.12 (1972).
26 B. SCHMIDT, JR., FREEDOM OF THE PRESS V. PUBLIC ACCESS
17 (1976).
2747 U.S.C. § 315 (1976).
|
15a
A. The Plain Language of Section 312(a) (7)
The plain language of Section 312(a)(7) authorizes
the FCC to revoke a broadcaster’s license
for willful or repeated failure to allow reasonable
access to or to permit purchase of reasonable
amounts of time for the use of a broadcasting sta-
tion by a legally qualified candidate for Federal elec-
tive office on behalf of his candidacy.**
The provision speaks in terms of individual candi-
dates—“a legally qualified candidate” seeking time to
advocate “his candidacy.” By contrast, the Commission’s
policy before Section 312(a)(7) gave no attention to
individual candidates. The Commission summarized its
practice prior to the adoption of Section 312(a)(7) in
its, Report and Order, Commission Policy in Enforcing
Section 312(a) (7):
Prior to the enactment of [Section 312(a) (7)], we
recognized political broadcasting as one of the four-
teen basic elements necessary to meet the public
interest, needs and desires of the community. No
legally qualified candidate had, at that time, a spe-
cific right of access to a broadcasting station. How-
ever, stations were required to make reasonable, good
faith judgments about the importance and interest
of particular races. Based upon those judgments,
licensees were to determine how much time should
be made available for candidates in each race on
either a paid or an unpaid basis. There was no re-
quirement that such time be made available for
specific “uses” of a broadcasting station to which
Section 315 “equal opportunities” would be applica-
ble.”
2847 U.S.C. § 312(a) (7) (1976) (emphasis added).
2? Report and Order, Commission Policy in Enforcing Sec-
tion 312(a) (7), 68 FCC 2d 1079 (1978).
l6a
The change of focus manifested in the language of Sec-
tion 312(a) (7), especially when seen against this back-
drop of previous Commission policy, indicates that VCon-
gress was dving something different in that provision
and supports the view that the legislators were creating
a new right for invidual candidates when they passed
that provision.”
Additionally, it is noteworthy that Section 312(a) (7)
establishes an access right for candidates for federal
office. The public interest doctrine, to the extent it
establishes a right of access at all, does so for all offices
—federal, state, and local. If Section 312(a)(7) does
no more than codify the requirements of the public in-
terest doctrine, it is peculiar that its plain language
limits it to federal elections.*! This is a clear indication
that candidates in federal elections were being singled out
for something beyond the amorphous right of access
created by the public interest doctrine.
0 In their briefs and at oral argument, the networks make
much of the fact that Section 312(a) (7) was enacted in the
context of “a long tradition of not affording rights of access
in the first instance to individual speakers.” CBS Brief at 20
(emphasis added). This observation underscores the im-
portance of the fact that the language of Section 312(a) (7)
focuses on the individual candidate. The plain language of
Section 312(a) (7) clearly goes beyond FCC practice under
the public interest doctrine.
31 Nowhere in their briefs do the networks explain why
Congress would have referred only to federal candidates if
it were intent on codifying Commission practice with regard
to all candidates. When asked at oral argument to explain
why Congress would have limited Section 312(a) (7) to fed-
eral candidates if it were not creating a right of access that
went beyond that available under the public interest doctrine,
counsel for CBS had no explanation.
17a
B. The Legislative History of Section 312(a) (7)
The legislative history of Section 312(a)(7) and of
the statute in which it was passed provides support for
the view that Section 312(a) (7) created an affirmative
right of access for federal candidates. Section 312 (a) (7)
was enacted as part of Title I of the Federal Election
Campaign Act of 1971. One of the primary purposes of
Title I was “to give candidates for public office greater
access to the media so that they may better explain their
stand on the issues and thereby more fully and com-
pletely inform the voters.” *
The supporters of the provision in the Senate saw it
as a means of creating a new right of access. Senator
Pastore, opening the hearings before the Senate Subcom-
mittee on Communication concerning the Act, noted that
increased access could be accomplished either by repeal
82S. Rep. No. 96, 92d Cong., Ist Sess. 20 (1971), reprinted
in [1972] U.S. Code Cong. & Ad. News 1778, 1774 (emphasis
added). See also S. Rep. No. 229, 92d Cong., 1st Sess. 56
(1971), reprinted in [1972] U.S. Code Cong. & Ad. News
1821; 117 Cong. Rec. 28792 (1971) (statement of Sen.
Pastore).
The report of the Senate Commerce Committee, which pro-
vides the most detailed discussion of the 1971 Act, charac-
terizes Section 312(a) (7) as a statutory attempt to “empha-
size” the existence of an obligation to make time available
to candidates in order to discourage licensees from reducing
access in response to restrictions set elsewhere in the 1971
Act on the rates they could charge candidates during pre-
election periods. S. Rep. No. 96, supra, at 34, reprinted in
U.S. Code Cong. & Ad. News at 1781-82. However, it must
be said that there is no specific explanation of the statutory
language or statement of its intended impact in the Senate
report.
18a
of Section 315 or by miandating a scheme of access.™
Senators Scott and Mathias, the co-sponsors of Section
312 (a) (7), proposed the section as a means of granting
access—especially to the nonincumbent candidate who
needs it most.”
An amendment to the second sentence of Section 315
(a) which was adopted at the same time as Section
312(a) (7) lends further support to our reading of Con-
gressional intent. Prior to 1971, the second sentence of
Section 315 made clear that broadcasters were not com-
mon carriers as to an initial request by a political candi-
date but only as to responsive requests under the equal
opportunities provision of the Section. When the Con-
gress adopted Section 312(a) (7) in 1971, it amended the
second sentence of Section 315(a) to read: “No obliga-
tion is imposed under this subsection upon any licensee
to allow the use of its station by any such candidate.”
The conference reports state that the addition of the
language “under this subsection” was a “conforming
amendment” necessitated by the adoption of Section 312
(a) (7)." If Section 312(a) (7) was merely intended to
codify pre-existing obligations and add the sanction of
revocation, no “conforming amendment” to Section 315
would have been required.
While not dispositive, subsequent events also lend cre-
dence to our reading of the statute. In 1973, the Senate
reviewed the results of the 1972 campaign in light of the
Federal Election Reform Act of 1971. The Committee
also had under consideration new bills proposing the re-
38 Federal Election Campaign Act: Hearings on 8.1, 8.382,
S.596, Before Subcomm. on Communications of Senate Comm.
on Commerce, 92d Cong., lst Sess. 152 (1971).
4 Td. at 348.
%5 H. Conf. Rep. No. 92-752, 92d Cong., 1st Sess. 22 (1971) ;
S. Conf. Rep. No. 92-580, 92d Cong., Ist Sess. 22 (1971).
19a
peal of Section 315. Then FCC Chairman Dean Burch
testified concerning, among other things, the Commis-
sion’s experience with Section 312 (a) (7).** He informed
the Committee that the Commission had issued a state-
ment setting forth its understanding that “Section 312
(a) (7) now imposes on the overall obligation to operate
in the public interest the additional specific requirement
that reasonable access and purchase of reasonable
amounts of time be afforded candidates for Federal of-
fice.” ** After explaining how the Commission was in-
terpreting the statute, Chairman Burch stated: “[i]f we
have erred in some important construction, we would, of
course, welcome Congressional guidance.” ** Senator Pas-
tore, the floor manager for the 1971 Act, responded that
the Commission was going about the task well.*® Two
days later in these hearings, Dr. Frank Stanton, Vice
Chairman of CBS, made a strong plea to the Committee
for the repeal of Section 312(a) (7). Dr. Stanton stated:
Section 312(a) now requires that on the pain of
license revocation a broadcaster must make avail-
able to candidates for a federal elective office rea-
sonable amounts of paid time or reasonable access to
free time.*°
86 Hearings Before the Communications Subcommittee of
the Senate Committee on Commerce, 93rd Cong., 1st Sess.,
ser. 93-4 at 189 (1973).
87 Public Notice, Use of Broadcast and Cablecast Facilities
by Candidates for Public Office, 34 F.C.C. 2d 510, 537-38
(1972) (emphasis supplied).
88 Hearings Before the Communications Subcommittee of
the Senate Committee on Commerce, 93rd Cong., 1st Sess.,
ser. 93-4 at 187 (1973).
2 Id.
40 Jd. at 190.
20a
Dr. Stanton went even further by stating:
Section 312 grants rights to all legally qualified can-
didates for Federal office and as the phrase “legally
qualified” has been interpreted by the FCC it in-
cludes many a fringe candidate.*
‘Yur study of the legislative history of Section 312 (a)
(7) causes us to agree that it requires a broadcaster to
“make available to candidates for a federal elective office
reasonable amounts of paid time.” *” To put it another
way, our reading of the legislative history leads us to
conclude that Section 312(a)(7) creates the right of
affirmative access that the networks are contesting in
these cases.
C. The Relevance of CBS v. DNC
The strongest support for the networks’ contention that
Section 312(a) (7) did not create a new right of access is
dictum in the Supreme Court’s opinion in Columbia
Broadcasti..g System, Inc. v. Democratic National Com-
mittee.** In light of the plain language and statutory
history of Section 312(a) (7), we find that CBS v. DNC
is not controlling here. In CBS v. DNC, the Court was
considering a decision by the FCC that neither the Com-
munications Act nor the First Amendment required the
agency to force broadcasters to accept paid editorial ad-
vertisements from citizens at large. The Court held that
the agency was not required to establish such an affirma-
tive right of access for all citizens. While treating this
issue in a lengthy opinion, the Court, in a passage that
was deferential to both Congress and the FCC, noted that
the Commission had frequently ruled that no private in-
41 Td.
42 Id.
48412 U.S. 94 (1972).
21a
dividual had a right of access, and that Congress had
not reversed that policy. Then it noted that Congress
had not adopted a general right of access in spite of the
fact that it had amended the Communications Act several
times. It was in a footnote to this point that the Court
alluded to Section 312(a) (7) as one of several amend-
ments to the Act which had been adopted. The Court
said in cursory fashion that Section 312(a) (7) “essen-
tially” codified the prior standards of the Commission.*
This dictum strayed far from what was before the Court,
and it was uttered in a case quite different from those
before us.
The Supreme Court in CBS v. DNC held that the
First Amendment does not require that citizens at large
be granted access to broadcasting facilities upon request.
The “essentially codified” language indicates at most the
Court’s judgment that Section 312(a) (7) represents no
departure from one principle embodied in the public in-
terest standard—to wit, that one limited class of speakers,
political candidates, has a stronger claim to the airwaves
than do citizens at large. The Court’s dictum is not a
denial that Congress had enacted, in 1971, a very specific,
obligatory right of access for federal candidates. In dis-
allowing a potentially expansive system of access, the
Court simply had no need to pass on whether Congress
had adopted the much more limited affirmative right of
access embodied in Section 312 (a) (7).
It is noteworthy that, in the case before us, the defer-
ence to Congress and the Commission which the Court
manifested in CBS v. DNC * cuts in favor of the ex-
istence of a limited right of access. Here, the Commis-
4 Jd. at 112-18.
45 Td. at 118-14 n.12.
46 CBS v. DNC, 412 U.S. at 112-18; see also id. at 181.
22a
sion uses a statutory provision to support, rather than
resist, the imposition of a limited affirmative right of
access.
D. Summary of Section II
At oral argument, counsel for ABC was asked whether
he would accept the proposition that Section 312 (a) (7)
created some right of access on the part of federal candi-
dates at some point in the campaign. He said that he
would. On further questioning from the bench, he ad-
mitted that therefore the issue of candidate access before
us could be reduced to two questions: (1) when does
the right of access attach, and (2) how might we decide
whether the treatment accorded a given request for ac-
cess is reasonable.
We agree. Our study of the language and history of
Section 312(a) (7) leads us to conclude that it did create
an affirmative right of access for individual candidates
for federal elective office. It is the implementation of that
right of access by the FCC which must now be examined.
III. THE IMPLEMENTATION BY THE FCC OF THE
AFFIRMATIVE RIGHT OF ACCESS FOR CANDIDATES
SEEKING FEDERAL ELECTIVE OFFICE
The networks challenge the implementation of Section
312(a) (7) by the Commission, arguing that the orders
involved here are arbitrary, capricious, and contrary both
to the statute and to prior FCC interpretations of the
statute. They contend that in these cases the Commis-
sion improperly substituted its judgment for that of the
broadcasters in deciding what access was reasonable.
The Commission responds that the orders are based
upon reasonable standards, previously articulated. It
contends that in these cases it assumed only a narrow
overseer’s role—that it focused primarily on whether the
broadcasters had given full consideration to all the rele-
23a
vant factors. It repudiates any attempt to substitute its
judgment for that of the broadcasters. Rather, it claims
that it confined itself to judging the objective reasonable-
ness of the broadcasters’ actions based upon their own
explanations of the bases of their decisions.
The Commission’s authority to interpret Section 312
(a) (7) is not in dispute. That authority derives from
Section 303(1r) of the Communications Act which pro-
vides that the Commission shall “make such rules and
prescribe such restrictions and conditions, not inconsist-
ent with law, as may be necessary to carry out the pro-
visions of the Act...” *’ It is the propriety of the Com-
mission’s implementation of the statute in these specific
cases that is challenged by the networks.
In the eight years since Section 312(a)(7) became
law, the Commission has developed its interpretation of
the statute, usually on a case by case basis. Only oc-
casionally has it issued general interpretative statements.*®
4747 U.S.C. §303(r) (1976).
48 In 1978 the Commission issued a Notice of Inquiry which
asked, inter alia, whether it should commence rulemaking
proceedings in order to clarify licensee obligations under
§ 312(a) (7). 43 Fed. Reg. 12938 (March 28, 1978). Had it
done so, many of the questions raised today may have been
resolved. We understand its decision not to do so, however,
in light of th strong opposition by petitioners and others
to such proceedings. Petitioner CBS, in fact, went so far as
to challege the legality of FCC rulemaking on the grounds
that it would “constitute an unwarranted governmental in-
trusion upon content and scheduling judgments of broad-
casters.” Report and Order: Commission Policy in Enforcing
Section 312(a) (7) of the Communications Act, 68 FCC 2d
1079, 1080 (1978). In responding to meritorious Commis-
sion initiative by raising such concerns, petitioners have, at
the very least, not eased the FCC’s burden in interpreting
and implementing § 312 (a) (7).
24a
The 1978 Report and Order, Commission Policy in En-
forcing Section 312(a)(7) of the Communications Act *
is by far its most thorough statement to date. While this
generally ad hoc approach is not ideal, we cannot say
that during the process the Commission has been “indif-
ferent to the rule of law,” as the petitioners contend.
Varying applications of Section 312(a)(7) have oc-
curred, but only where varying factual contexts have re-
quired it. New developments in the agency’s interpreta-
tion of the statute have surfaced, but never without good
cause, adequately explained. We are satisfied that the
Commission’s orders in this case are within the agency’s
statutory authority and do not represent an abuse of
discretion.
A. Determining When the Campaign Has Begun
The networks claim a right to refuse to sell time to
candidates “too early” in the campaign. In the instant
case, they contend that the Carter-Mondale Presidential
Committee was requesting too much time, too soon in the
race. They argue that the national political conventions
and the general election were too far away to justify
the airtime sought by CMPC.
The Commission counters that the question of when the
obligations imposed by Section 312(a)(7) attach is a
threshold question which has “an inherently . . . objective
character.” " It argues that neither broadcasters nor
candidates “bring a perspective of total objectivity as
to questions of the initial applicability of Section 312 (a)
4°68 FCC 2d 1079 (1978).
5° Columbia Broadcasting System, Inc. v. FCC, 454 F.2d
1018, 1026 (1971).
51 Carter-Mondale Presidential Committee, Inc., FCC
2d . (FCC +79-773, November 28, 1979) (Order
II). App. at 315.
25a
(7).” ™ It concludes, therefore, that it is the FCC’s stat-
utory obligation “to make a determination on this thres-
hold issue . . . based on [an] independent evaluation of
the status of the campaign, taking into account the posi-
tion of the candidate and the networks as well as other
factors.” ©
In this case, the agency looked to a variety of “objec-
tive indicia” in dete nining that the campaign had be-
gun. Among the factors considered were: announce-
ments of candidacy, the establishment of national cam-
paign organizations, fund raising activities, endorse-
ments, media coverage, and the progress of the delegate
selection process.“ “In this context,” the Commission
stated, “the only reasonable conclusion to be drawn is
that the campaign is in full swing now.” ©
It is noteworthy that the networks do not challenge
the reasonableness of the indicia used by the FCC in
reaching its conclusion. Nor do they challenge the rea-
sonableness of the conclusion itself. They argue only
that the agency ought not address the question at all.
The networks argue that the FCC’s decision to treat
“the question of when” as one to be answered by the Com-
mission “cannot be reconciled with” its prior statements
on the issue.®* It is true that, prior to the orders now
under review, the Commission’s pronouncements on tnis
point have lacked the clarity that facilitates review. Still,
52 Td.
53 FCC 2d at ——. App. at 314.
54 Carter-Mondale Presidential Committee, Inc., ——- FCC
2d . (FCC +79-750, November 21, 1979) (Order
I). App. at 129-31.
55 __. FCC 2d at ——. App. at 181.
56 CBS Brief at 29.
26a
we are unable to conclude that the present orders “‘can-
not be reconciled with” these earlier renditions of the
Commission’s position. The 1978 Report and Order, the
only statement by the Commission which addressed the
issue in a meaningful way, seems to have assumed that
the “question of when” was addressed to the FCC. There-
in, the Commission declined to place any uniform limits
on the period during which Section 312(a) (7) applied
“because each campaign is unique with respect to the
controversiality and importance of the issues involved,
the public interest in the race, and the amount of cam-
paigning done by the candidates.” *’ Determining to pro-
ceed on a case-by-case basis, the Commission specifically
foresaw the possibility that “a presidential campaign
may be in full swing almost a year before an elec-
tion. .. .”°§ The key fact is that the Commission de-
clined to define uniform limits. It did not foreswear the
power to do so; indeed, it affirmed the power to decide on
a case by case basis when campaigns had begun.*®
57 Report and Order: Commission Policy on Enforcing
Section 312(a) (7), 68 F.C.C. 2d 1079, 1091 (1978).
58 Td.
59 Although the networks cite dictum in one decision of the
Commission, Anthony R. Martin-Trigona, 66 F.C.C. 2d 968,
969 (1977) (holding that Martin-Trigona was not a “legally
qualified candidate’), to support their position, they have
failed to direct us to a single case where either the Commis-
sion or the Broadcast Bureau directly considered the question
at hand and decided it in a way which “cannot be reconciled
with” the FCC’s position in this case. Indeed, in the second
Anthony R. Martin-Trigona case, 67 F.C.C. 2d 743 (1978),
the Commission said that, in addressing this question, “the
licensee, and ultimately the Commission must look to the
circumstances of each particular case to determine when it
27a
ABC argues that if the FCC undertakes the task of de-
ciding when a campaign has begun in order to enforce
Section 312(a) (7), the agency will be impermissibly in-
volved in the election process. This would be true only if
the Commission sought to set a starting date for the
campaign, rather than merely find that it has already
begun. As described in the orders under review, the
Commission’s determination of when the statutory obliga-
tions attach does not control the electoral process. To the
contrary, the determination is controlled by the process.”
There is nothing offensive about such a system.™
Finally, all three networks argue that permitting the
FCC to decide the “question of when” would violate their
First Amendment rights. Though we reserve discussion
of most of the constitutional arguments raised by the net-
is reasonable for a candidate’s access to begin. .. .” 67 F.C.C.
2d at 746 n.4.
We cannot find that the Commission was “indifferent to
the rule of law” and its past precedents in deciding inde-
pendently to determine the date upon which access rights
accrue to federal candidates. Columbia Broadcasting System,
Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir. 1971).
6 As Commissioner Brown noted in his separate statement
on reconsideration: ‘The Commission did not create this
factual situation, but neither we nor the networks can ignore
it.” Order II. —— FCC 2d . (1979). App. at 330.
61 ABC insists that a result of the Commission’s ruling is
that the candidate’s needs or desires will govern when the
broadcaster must begin selling time in a campaign. See, e.g.,
ABC Brief at 18, 26, 30, 36, 43-46, 50. But the Commission
held that the “candidates needs” is one of the considerations
to be weighed by the broadcaster after a threshold determina-
tion has been made that the campaign is under way and the
obligations imposed by Section 312(a)(7) have attached.
See Order II, —— FCC 2d , (1979). App. at 321-
24. The “candidate’s needs” play no role in determining
whether Section 312(a) (7) obligations have attached.
28a
works for a later section of this opinion,” we treat this
one here. Simply put, not all aspects of the broadcasting
business enjoy constitutional protection.* It is the edi-
torial process that is protected—and, as the Supreme
Court has explained, “editing is the selection and choice
of material.” * A determination of when statutory obli-
gations attach is not an editorial decision. More specific-
ally, deciding whether a campaign has begun for the
purposes of Section 312(a) (7) involves no choice of ma-
teris/; it is purely a legal judgment. And, “a legal
judgment by a licensee .. . cannot be legally binding on
the FCC or this court ...”™ Therefore, there is no con-
stitutional objection to a determination by the Commis-
sion defining the point during a campaign when the obli-
gations of Section 312(a) (7) attach.
The networks ignore the fact that by raising “the ques-
tion of when” the Commission has narrowed the scope of
the statute and has limited its impact on broadcasters.
On its face, the statute applies to “a legally qualified can-
didate for Federal elective office.” It might be read as
82 See Section IV infra.
* The business and commercial aspects of journalism, for
example, are not immunized from regulation by first amend-
ment considerations. See, Citizen Publishing Co. v. U.S., 394
U.S. 148, 155-56 (1951) (no immunity from antitrust laws) ;
Associated Press v. NLRB, 301 U.S. 108, 182-33 (1937) (Na-
tional Labor Relations Act held applicable to news-gathering
organization). Nor may a news reporter refuse to testify
before a grand jury, even as to information acquired through
reporting activities. Branzburg v. Hayes, 408 U.S. 665
(1972).
* CBS v. DNC, 412 U.S. 94, 124 (1973).
65 National Broadcasting Co. v. FCC, 516 F.2d 1101, 11738
(Bazelon, C.J., dissenting from the order vacating the pre-
vious order granting rehearing en banc).
29a
vesting rights in the individual candidate at such time
as he becomes legally qualified—without regard to the
stage of the campaign. By confining the applicability
of Section 312(a)(7) to a period when the campaign
is fully under way, the Commission has limited the stat-
ute’s impact on broadcasters.”
In summary, the Commission was justified in pro-
nouncing its right to decide when in the campaign the
access rights granted to candidates by Section 312(a)
(7) attach. This determination is an objective, non-
editorial judgment for which the Commission is better
suited than either broadcasters or candidates. The Com-
mission was also justified in opting for a campaign-by-
campaign approach to the question rather than for a uni-
form rule. The indicia adduced by the FCC for this
campaign-by-campaign analysis are reasonable, and they
were reasonably applied in this case. The Commission’s
actions in this regard comported with prior FCC rulings
and are constitutionally acceptable.
B. Determining Whether Reasonable Access Has Been
Granted
Once the threshold determination that a campaign has
begun is made by the Commission, it remains for some-
one to decide whether reasonable access has been granted
to specific requesting candidates. The networks argue
that the Commission has created a system of inconsistent
standards which vitiates broadcaster discretion by over-
valuing the candidate’s desires. The Commission re-
sponds that it has articulated reasonable standards which
value both “broadcaster discretion and broadcaster ac-
66 Cf. American Security Council Education Foundation v.
FCC, —— F.2d —— (No. 77-1448, D.C. Cir., June 29, 1979),
petition for cert. filed.
7
em.
80a
countability,”*’ and it contends that these standards
have been consistent over time.
Before we discuss the merits of these claims, we must
consider one significant prefatory issue. From the lan-
guage of Section 312(a) (7), it is not obvious whether,
once the campaign has begun, the reasonableness of the
access provided a candidate is to be measured from the
perspective of the requestor or from that of the grantor
(the broadcaster). The CMPC argues the case as if the
standard were whether a reasonable request has been
made. It is clear that the networks perceive their obli-
gation—insofar as they perceive that they have one at
all—as an obligation to make a reasonable offer. To the
extent it faces this problem directly, the Commission re-
quires that the offer of access be reasonable—with due
consideration of the particular needs of the candidate.”
This position is consistent with the Commission’s 1978
Report and Order.” As between the two possible read-
ings of the statute, this latter view better reflects the
legislative history.
We now turn to our discussion of the standards em-
ployed to determine whether reasonable access has been
granted in specific cases.
(1) The Type of Review Conducted by the Commis-
sion in Examining a Broadcaster’s Decision. All parties
to this litigation pay lip-service to the concept of broad-
caster discretion. The issue is: to what extent is defer-
ence paid to the editorial rights of the broadcasters by
67 Order II, —— FCC 2d ' (1979). App. at 321.
68 CMPC Brief at 32-84.
6° Order I, —— FCC 2d . and n.16 (1979). App.
at 126-27.
7 Report and Order, Commission Policy on Enforcing Sec-
tion 312(a) (7), 68 FCC 2d 1079 (1978).
8la
the Commission’s definition of “reasonable access?” The
broadcasters say their discretion is effectively eliminated.
The FCC says it preserves broadcaster discretion while
seeking only broadcaster accountability. We find that the
agency has succeeded in its delicate task by confining
itself to a review of two questions: (1) has the broad-
caster adverted to the proper standards in deciding
whether to grant a request for access, and (2) is the
broadcaster’s explanation for his decision reasonable in
terms of those standards? Discretion remains with the
broadcaster, but not discretion to act without reasonable
regard to the standards.
The Commission describes the type of review it has
employed for access cases as forcing the networks to
take a “hard look,” ™ and it cites Greater Boston Tele-
vision Corp, v. FCC™ and Citizens to Preserve Overton
Park, Inc. v. Volpe.” Often the “hard look” metaphor
is used to mask a content-less test, however. Here, we
take the Commission to be saying that it will insist that
broadcasters consider and address all non-frivolous mat-
ters in responding to a candidate’s request for time. We
approve this approach.
We hasten, however, to note the restraints upon the
reviewing tribunal that are inherent in this type of re-
view. As Justice Harlan observed in applying the con-
cept to reviewing courts:
The court’s responsibility is not to supplant [a]
Commission’s balance of . . . competing interests
with one more nearly to its liking, but instead to
assure itself that the Commission has given reasoned
™1 Order I, —— FCC 2d ‘ (1979). App. at 126.
72444 F.2d 841, 851 (1971), cert. denied, 406 U.S. 950
(1972).
73401 U.S. 402, 416 (1971).
32a
consideration to each of the pertinent factors. Judi-
cial review of the Commission’s orders will therefore
function accurately and efficaciously only if the Com-
mission indicates fully and carefully the methods by
which, and the purpose for which, it has chosen to
ee
The Commission was correct in concluding that it
should confine its role to “judging the objective reason-
ableness of the licensee’s determination” and that it
must avoid making its own subjective judgments or sub-
stituting its judgment for that of the broadcaster.
The Commission has required that broadcasters file,
“in response to a complaint, a full explanation of a broad-
caster’s decision.” A statement of reasons is indispens-
able to meaningful review. If the Commission is to limit
its role in determining whether the broadcaster has con-
sidered and addressed all non-frivolous matters in proc-
essing an access request, such a requirement is not only
proper but also necessary.
(2) The Standards to Which a Broadcaster Should
Advert in Deciding Whether to Grant a Specific Request
for Access. The networks claim that the standards ap-
plied by the Commission in these cases are vague, in-
consistent with previous FCC statements concerning the
relevant standards, and unduly considerate of the candi-
date’s desires. The Commission contends that the stand-
ards it has proferred have been articulated clearly and
consistently in recent years, and it avers that they strike
the proper balance between the statutory goal of access
™ Permian Basin Area Rate Cases, 890 U.S. 747, 792
(1968). See also Burlington Truck Lines v. United States,
371 U.S. 156, 167-68 (1962) ; WAIT Radio v. FCC, 418 F.2d
1153, 1156 (1969).
75 Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1011
(1976).
33a
for candidates and the needs of broadcast journalists.
After reviewing the standards advanced by the FCC in
these cases and in its earlier statements on this subject
(especially the 1978 Report and Order),’* we conclude
that the Commission has articulated reasonable standards
to guide broadcasters in determining whether to grant
specific requests for access. In addition, though the Com-
mission’s thinking clearly has been evolving, we find no
fundamental inconsistency between its earlier statements
and its action in these cases.
In its 1978 Report and Order, the FCC declined to
adopt formalized rules to implement Section 312(a) (7)
because “there are no [such] rules which would encom-
pass all the various circumstances possible during an
election campaign.” ** However, it did note and discuss
“areas ... Where some guidelines would be appropriate
to clear up confusion expressed by candidates and li-
censees and to ensure that the Congressional intent in
enacting Section 312(a) is fully realized.” **
According to the FCC, some appropriate considerations
are: (a) the individual needs of the candidate (as ex-
pressed by the candidate) ; (b) the amount of time pre-
viously provided to the candidate; (c) potential disrup-
tion of regular programming; (d) the number of other
candidates likely to invoke equal opportunity rights if
the broadcaster grants the request before him; and, (e)
the timing of the request.
In its 1978 statement, the Commission stressed that
the individual needs of the candidate making the request
for access deserved special weight. It indicated a belief
76 Report and Order: Commission Policy in Enforcing Sec-
tion 312(a) (7) of the Communications Act, 68 F.C.C. 2d
1079 (1978).
7 Id. at 1089.
78 Id.
34a
that Federal candidates are the intended beneficiary
of Section 312(a)(7) and therefore a candidate’s
desires as to the method of conducting his or her
media campaign should be considered by licensees in
granting reasonable access.”
It went further:
A Federal candidate’s decisions as to the best method
of pursuing his or her media campaign should be
honored as much as possible under the ‘reasonable’
limits imposed by the licensee.”
The Commission noted that it would be particularly un-
reasonable for a broadcasver to
follow a policy of flatly banning access by a Federal
candidate to any of the classes and lengths of pro-
gram or spot time in the same periods which the
station offers to commercial advertisers. We feel
certain that Congress in granting Federal candidates
a specific right of access to a station wished such
candidates to be at least on par with commercial
advertisers who have no such access rights... .*
Indeed, it flatly proscribed such across-the-board bans.*
In its first order in the cases at hand, the Commission
noted that it placed “particular emphasis” on the candi-
date’s needs. But it pointed out that
[i]n taking this factor into account, the licensee... ©
does retain some discretion to evaluate the reason-
79 Jd. at 1089 n.14 (1978).
8 Td. at 1090.
81 Jd,
82 Td. at 1094.
35a
ableness of [the candidate’s] assessment [of his
needs] in the broad sense and to weigh that factor
against other factors which we have said are rele-
vant.*
In its second order, the agency explained even more
fully “how the specific nature or purpose of a particular
candidate’s request should be weighed.” * The Commis-
sion indicated that the broadcaster was not to evaluate
the candidate’s needs insofar as they involve the candi-
date’s subjective, personal or immediate political desires.
Nor should the broadcaster second-guess the political
wisdom of the candidate’s request.” Instead, in evaluat-
ing the candidate’s needs, the broadcaster was to act in
a manner that was responsive to the candidate’s request.
In this overall weighing process, we nevertheless
believe that a broadcaster should be required to
demonstrate the extent to which he has attempted
to tailor his offer of airtime to be as reasonably
responsive as possible (given countervailing factors)
to a particular candidate’s stated purpose in seeking
the airtime. For example, a candidate might re-
quest an opportunity to discuss a complex set of
issues important to the electorate which he believes
cannot be accomplished through spot announcements
or short program requests. In our view Section 312
(a) (7)’s goal of encouraging electorate-informing
discussion requires a broadcaster to take into ac-
count this aspect of the individual candidate’s re-
quest.
83 Order I, —— FCC 2d ’ (1979). App. at 126.
& Order II, —— FCC 2d ; (1979).
85 Td. at ——.. App. at 315-21.
86 Jd. at ——, App. at 317.
36a
Thus, consideration of the candidate’s needs should
manifest itself in ‘a specific—rather than blanket—re-
sponse to individual requests [which affords] greater as-
surance ... that [the] candidate’s interests cannot be
ignored in the balancing process.” *
The individual need of the candidate is only the first
consideration advanced by the Commission to guide broad-
casters in determining whether to grant a specific re-
quest for access. A second consideration is the amount
of time previously provided to the candidate. Clearly, as
the amount of time already provided to a candidate in-
creases, the strength of his request for additional time
decreases. This consideration merely reflects the fact that
inherent in the term “reasonable access’ is the notion
that the broadcaster may place some limits on the amount
of time it will make available to any single candidate.
It follows that whatever the broadcaster’s obligation to
provide access to a candidate, the obligation will be
greater if the candidate has not previously been provided
time.
In this respect, the networks have misinterpreted the
Commission’s statements regarding the weight to be ac-
corded a candidate’s first request. The networks argue
that the FCC gives so much weight to the first request
of a candidate that a first request cannot be denied. At
oral argument, counsel for FCC protested that nothing
in the Commission’s decisions requires that first requests
be granted automatically. He continued that the Com-
mission merely noted that, as the first request, it could
not be denied on the basis that the candidate had already
obtained a reasonable amount of time to satisfy the
statute.** We read the orders under review to say ex-
87 Td. at ——. App. at 322.
88 Jd. at ——. App. at 316. See also Separate Statement of
Commissioner Brown, — —FCC 2d at ——. App. at 332.
87a
actly that. The decisions allow the broadcaster leeway
to demonstrate that the amount of time requested ¢pn-
not be granted because of the likelihood of subsey.-21
requests or that a candidate’s stated purpose could be
accomplished with a lesser amount of time even if there
is no probability that other candidates will request time.”
Thus in the cases at hand a counter-offer of 15 minutes
as opposed to a half-hour may have been defensible.
The third consideration advanced by the FCC to guide
broadcasters in granting or denying access requests is
the potential disruption of the broadcaster’s regular pro-
gramming. The simple fact that a broadcaster would
have to make some changes in his program schedule is
not a sufficient basis for denying a request unless those
changes would amount to a “substantial” disruptive im-
pact. Congress envisioned a system where federal candi-
dates would have access—presumably by displacing some
regular programming. Only substantial disruption of a
broadcaster’s regular programming is entitled to weight
in the balancing process.
The danger of disruption is greatest, of course, in the
closing days of a campaign when most, if not all, candi-
dates will desire air time. The farther away one moves
from election day, the more diluted the impact of manda-
tory political “uses.” Thus, the Commission has indicated
that the danger of disruption will be weighted more
heavily later in the campaign.”
Section 312(a) (7) operates against the background of
the equal time requirements of Section 315. The fourth
consideration that broadcasters may weigh in addressing
a candidate’s request for time is the number of other
candidates likely to invoke equal opportunity rights if
8° Td. at ——. App. at 317.
% Order I, —— FCC 2d ; (1979). App. at 133.
47 U.S.C. §315 (1976).
38a
the broadcaster grants the request before him. At a given
point, the potential disruption might justify denying or,
more likely, limiting a request for time. More often, a
likelihood of a large number of equal time requests might
justify modification of requirements concomitant to the
access right. For example, in its 1978 Report and Order,
the FCC said:
We are aware that there may be situations where
the number of Federal candidates in a particular
election may make it impossible for a station to make
prime-time program-time available. We have never
held that the “prime-time, program-time” policy is
absolute and inflexible. We will continue to make
exceptions to this policy where circumstances dic-
tate.”
The fifth consideration offered by the FCC to guide
broadcasters faced with requests for access is the timing
of the request itself. This is separate from the question
of when obligations under Section 312(a)(7) attach.
Here the issue is whether the candidate has given the
broadcaster reasonable notice that he desires to pur-
chase time—notice sufficient to permit the broadcaster
to make the adjustments in its schedule that may be re-
quired. If a request is made months in advance, deny-
ing it is more unreasonable than it would be if it is made
only days before the proposed broadcast.
Finally, the Commission has articulated an overarch-
ing consideration to which broadcasters must attend in
considering a candidate’s request for time. The broad-
caster must articulate with clarity the basis for his de-
cision. He must address the five considerations just out-
lined when they are relevant, and he must treat any
others that might bear on the individual case.
®2 Com~nission Policy in Enforcing Section 312(a) (7) of
the Communications Act 68 F.C.C. 2d 1079, 1090 (1978).
% See Section IIIB(1) supra.
89a
C. Applying the Standards to the Cases at Hand
We must now consider whether the record in these
cases adequately supports the Commission’s conclusion
that the networks failed to apply the proper standards.
We hold that it does.
NBC and ABC refused to sell the Carter-Mondale
Presidential Committee any time in December, saying it
was too early in the campaign. The networks have not
contested the reasonableness of the Commission’s finding
that the campaign was in full swing. Instead, they
argued that as a legal matter the Commission did not
have the power to make that finding. However, we have
affirmed the FCC’s authority to make that decision.™ It
follows that the Commission was correct in finding that
NBC and ABC had failed to apply the proper standards
in responding to CMPC’s request for time.”
The networks—in this regard, all three networks—dis-
played unreasonable disregard for the relevant standards
in a second way, however. NBC and ABC, by deciding
that it was too early to sell time to any candidate, had
settled on what amounted to an across-the-board ban on
candidate access. CBS, for its part, had in September
adopted a policy of selling two five-minute spots to candi-
dates who requested time in 1979.% While the CBS policy
did not represent a total ban, it was also an across-the-
board policy. Such across-the-board policies violated the
longstanding mandate of the Commission that, in address-
ing a request for access from a candidate for federal
office, the broadcaster had to tailor his response to the
% See Section IIIA supra.
% See Order I, —— FCC 2d , (1979). App. at
134.
% Id. at ——. App. at 135.
40a
individual candidate.” Across-the-board policies inher-
ently fail to address this standard. Thus the Commission
found that NBC’s absolute refusal to sell any time was
precisely “the type of ‘arbitrary blanket ban’ that was
deemed to be unreasonable in our July 1978 Report and
Order.” ** And, it concluded with respect to ABC’s and
CBS’s sales policies:
ABC appears to have adopted a blanket policy of
refusing to sell time to presidential candidates until
January 1980 which, in view of our determination
about the state of the campaign is unreasonable.”
and,
We cannot find that these reasons [advanced by
CBS] are sufficient to justify 4 blanket refusal to
97 See Section IV B(2) supra.
8 CBS states that “if the circumstances of the individual
candidate were required to be considered . . . it would have
been reasonable for CBS to make a limited offer of program
time at this point, '. light of the fact that President Carter
enjoys unparalleled access to the media.” CBS Brief at 38.
ABC makes a similar argument, ABC Brief at 55, and NBC
refers to the argument in a footnote, NBC Brief at 43. These
arguments ignore the piain meaning of the statute and the
Commission’s interpretation of that language as articulated
in Penny Manes, 42 FCC 2d 878 (1973). The statute makes
clear that the obligation to afford “reasonable access” can
be satisfied only through the sale or gift of “use[s]” of the
station and that coverage of the candidate in news program-
ming is not sufficient. Moreover, as early as 1973, the Com-
mission stated that “Section 312(a) (7) relates to ‘use’ of a
licensee’s facilities by the candidate, not to a licensee’s cover-
age of a candidate’s campaign in news or public affairs pro-
gramming.” Penny Manes, 42 FCC 2d 878 at 882-83.
% Order II, —— FCC 2d ; (1979). App. at 323
(emphasis supplied).
4la
sell the time; nor can we find that these reasons are
sufficient to justify CBS’ policy of limiting its sales
to candidates to five minute segments.’”
In particular, the across-the-board policies of all three
networks failed to address the needs of CMPC as stated
by it—to wit, for a 30-minute block of time to present
a comprehensive statement that would “kick off’ the
campaign in the thought-to-be crucial days of early De-
cember. The FCC did not prejudge that 30 minutes was
the only reasonably responsive offer the networks could
make. But it was clear 0 minutes, or 5 minutes, would
not do—especially when those offers were the result of
an across-the-board policy. It correctly concluded that,
given their proposals, the networks could not have taken
the requisite “hard look” at the relevant factors—here,
especially the first factor, the specific needs of the candi-
date. Therefore, the Commission correctly concluded that
the networks had unreasonably failed to grant access
as required by Section 312 (a) (7).
D. Conclusion to Section III
In these cases, the Commission’s view might be sum-
marized as follows: the interests of broadcasters and
candidates must be balanced in determining what consit-
tutes reasonable access; the broadcaster must be respon-
sive to each individual request by a candidate and may
not adopt across-the-board policies; the broadcaster must
provide a full explanation of the basis of his decision in
responding to a request, giving full consideration to all
relevant factors; and in the final analysis the Commis-
sion’s role is to judge the objective reasonableness of the
broadcaster’s action based on the broadcaster’s own ex-
planation of the basis for his decision. In essence, the
100 Order I, ———- FCC 2d . (1979). App. at 184-
85 (emphasis supplied).
42a
Commission determines, based upon the record adduced
by the broadcaster, whether or not the broadcaster has
considered and addressed all non-frivolous matters.
Stated as it is summarized in the preceding paragraph,
the Commission’s position is eminently reasonable. But
the actions of the agency in these cases were not flawless.
If an agency intends to demand that regulated com-
panies consider and address all relevant factors, it must
be clear and consistent in articulating those factors.
Here, although the source for each of the standards
pressed by the Commission can be seen with hindsight,
the agency failed to headline its policy as clearly as it
might have.
On the other hand, it must be said that during the
course of these cases, the FCC gave the networks every
opportunity to explain and justify their decisions. The
Commission examined the networks’ claims with care
and deference, and it articulated the reasons and rationale
for its actions with clarity. Moreover, the standards em-
ployed in the orders under review here represent a very
reasonable effort at implementing Section 312(a) (7).
The Commission’s orders satisfy the requirements for
reasoned decision-making set forth by this Circuit in
Greater Boston Television Corp. v. FCC.
IV. THE CONSTITUTIONALITY OF SECTION 312(A) (7)
AS IMPLEMENTED
The networks argue that Section 312(a)(7) violates
the First Amendment because it impinges upon their
editorial discretion, injecting the government into the
decisional processes of broadcasting.’** They cite Miami
101 444 F.2d 841 (1970), cert. denied, 403 U.S. 923 (1971).
102 At the outset, a tension in the overall argument of the
networks is worth noting. On the one hand, they concede that
the Congress and the FCC can require, and have required,
43a
Herald Publishing Co. v. Tornillo’* for the proposition
that a compulsory access requirement for political candi-
dates would violate the First Amendment if it were
applied to the print media. They argue that no decision
of the Supreme Court has recognized an affirmative right
of access to the broadcast media for any individual or
group. The Court, the networks contend, has approved
mandatory access schemes only where a broadcaster has
triggered rights of reply by a specific programming de-
cision—a contingent right of access, so-called..* They
point to the Court’s decisions in CBS v. DNC *®™ and FCC
v. Midwest Video’ as indicating the unwillingness of
the Supreme Court to authorize any affirmative right of
access.
The network’s reliance on CBS v. DNC and Midwest
Video is misplaced. In CBS v. DNC the Court found that
nothing in the language of the Communications Act com-
pelled a conclusion different from that reached by the
FCC, to wit, that the Commission need not require broad-
broadcasters to grant access to political candidates as a group
under the rubric of the public interest doctrine. Indeed, they
cite the dictum in CBS v. DNC, 412 U.S. at 118-14 n.12
(1972), to show that the language of Section 312(a) (7) is
nothing more than a codification of the public interest rule.
On the other hand, they argue that the imposition of a bur-
den of granting access to individual candidates for federal
office is an impermissible interference with their editorial
privileges. This seems disingenuous. The interference with
editorial discretion seems no more or less under either ap-
proach.
103 418 U.S. 241 (1974).
104 See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S.
397 (1969).
105 412 U.S. 94 (1972).
106 99 S. Ct. 1435 (1979).
44a
casters to accept paid political ads. The Court did not
address the issue of whether it would be constitutional
for the Commission to grant an affirmative right of access
in broadeasting—even for the general public. It cer-
tainly did not reach the constitutionality of the rather
limited and qualified rights of access made available to
federal candidates only by Section 312(a) (7). In Mid--
west Video, the Supreme Court’s decision turned entirely
on statutory, not constitutional, grounds.’
It is true that the Eighth Circuit’s decision in that
case °§ did suggest that a general affirmative access re-
quirement would be unconstitutional in cable television.
But we are not reviewing an attempt by Congress or
the FCC to create a general affirmative right of access
—either in cable television or on the VHF channels.
Rather, we confront a statutory provision creating a
limited affirmative right of access in candidates for
federal elective office—a provision which has been im-
plemented in a concrete way by the FCC. Moreover, cable
television is very different from VHF commercial broad-
casting of the type involved here. For example, the
107 The Supreme Court reserved consideration of the con-
stitutionality of a generally available affirmative right of
access to cable television. 99 S. Ct. at 1446 n.19.
The heavy reliance of the networks on the dictum in CBS
v. DNC regarding Section 312(a) (7) is plainly inconsistent
with their arguments regarding the constitutionality of the
FCC’s attempt to impose a generally available affirmative
right to access to cable television. It may be that the FCC’s
effort in that regard was unconstitutional—we do not as yet
have a Supreme Court pronouncement on it. But the FCC’s
regulations for cable television were cited approvingly in
dictum appearing as text (as opposed to dictum in a foot-
note) in CBS v. DNC, 412 U.S. 94, 318-82 (1972).
108571 F.2d 1025, 1053-57 (8th Cir. 1978), aff'd, 99 S. Ct.
1435 (1979).
45a
“searcity” rationale used to justify FCC regulation in
the first place has much less force with regard to cable
television than with regard to VHF commercial broad-
casting.’ It is the constitutionality of this statute as
implemented which we must consider.
The Supreme Court’s opinion in CBS v. DNC provides
support for the limited affirmative right of access at issue
here. In that case, the Court reiterated the teaching of
earlier cases that the broadcaster’s editorial rights were
less important than the rights of viewers and listeners.
[W]e have held that “[n]Jo one has a First Amend-
ment right to a license or to monopolize a radio
frequency. . . . Although the broadcaster is not with-
out protection under the First Amendment, “[i]t is
the right of the views and listeners, not the right
of the broadcasters, which is paramount... . It is the
right of the public to receive suitable access to social,
political, esthetic, moral and other ideas and experi-
ences which is crucial here. . . .” 1°
It is worth noting that the limited affirmative right of
access at issue here is vested in candidates for federal
office. The public’s right to be informed is nowhere
stronger than in the area of elections. And, no speech
is more protected than political speech." Furthermore,
in television we deal with a medium devoted exclusively
to communication—and one which, by all accounts, is the
medium of communication for most of our society. It is
difficult to contend that the limited appropriation by
109 See Brandywine-Main Line Radio, Inc. v. Federal Com-
munications Commission, 473 F.2d 16, 75-76 (1972) (Baze-
lon, Chief Judge, dissenting).
110 412 U.S. at 102 (1972) (citations omitted).
111 See Wellington, On Freedom of Expression, 88 Yale L.J.
1105 (1979).
46a
government of part of the available spectrum for use in
informing the electorate is constitutionally unacceptable.
As implemented by the Commission, Section 312 (a) (7)
provides such a right of affirmative access to a narrowly
defined class of citizens. It authorizes access only for
political | “uses.” And, the FCC has developed a pro-
cedure which affords leeway to the broadcaster’s discre-
tion: (1) the Commission confines its review to a con-
sideration of the reasonableness of the broadcaster’s ex-
planation of his basis for refusing requested time, and
(2) the reasonableness of the broadcaster’s explanation
is judged solely by whether he has duly regarded articu-
lated standards." The agency further limits the impact
of Section 312(a) (7) on the broadcaster by limiting its
applicability to the “political season” as objectively de-
fined by the Commission.*** This kind of limited alloca-
tion of the airwaves does not constitute an unwarranted
incursion on editorial rights.
It is settled doctrine ™* that the government retains the
power to decide how and to whom to allocate the air
waves."* The right of “use” granted to the candidate
112 See Section IIIB supra.
118 See Section IIIA supra.
114 Elsewhere this writer has questioned the validity of the
“scarcity” rationale as a justification for regulation of the
broadcast media. See, e.g., Bazelon, FCC Regulation of the
Telecommunications Press, 1975 Duke Law Journal 213, 223
(1975). It must be said, however, that the “scarcity” ra-
tionale is most valid when applied to VHF television. 7d.
And, these comments notwithstanding, it cannot be doubted
that the power of the government to allocate radio and tele-
vision frequencies has been upheld. See, e.g., National Broad-
casting Co. v. United States, 319 U.S. 190 (1943).
115 See Red Lion Broadcasting v. FCC, 395 U.S. 367, 390-91
(1969) (the First Amendment confers no right on licensees
47a
under Section 312(a) (7) does not confer on the candidate
any right to interfere with what the broadcast journalist
says or does on the air. Similarly, the broadcast jour-
nalist may not determine what the candidate says or
does with the limited amount of air time available to
him. Therefore, Section 312(a)(7) represents only a
congressional re-allocation of the “use” of portions of
the airwaves from the licensee to the candidate. The
broadcaster’s exercise of journalistic discretion—his right
to speak and editorialize—is unimpaired."
The agency has defined its role and the rights of the
candidates in such a way as to minimize the imposition
on broadcasters. As implemented, Section 312(a) (7) is
a constitutionally acceptable accommodation between, on
the one hand, the public’s right to be informed about
elections and the right of candidates to speak and, on the
other hand, the editorial rights of broadcasters."
to prevent others from broadcasting on “their” frequencies
and no right to an unconditional monopoly of a scarce re-
source which the Government has denied others the right to
use).
116 The government practice involved here is analogous to
reasonable time, place, and manner restrictions. Such restric-
tions have long been recognized as constitutionally acceptable.
See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98
(1972) ; cf. Cox v. Louisiana, 379 U.S. 536, 554 (1965) ; Cox
v. New Hampshire, 312 U.S. 569, 574 (1941); Schneider v.
State, 308 U.S. 147, 160 (19389).
117 The majority shares the first amendment concerns ex-
pressed by Judge Tamm, and welcomes the admonition re-
garding agency conduct that is embodied in his concurring
opinion.
~-
48a
V. THE APPLICATION OF SECTION 312(A) (7)
TO THE NETWORKS
The networks argue that by its terms Section 312 (a)
(7) applies only to licensees—the Commission may revoke
a “station license or construction permit.” Thus, they
say, the Commission erred in applying the mandate of
Section 312(a) (7) to the networks.
The Commission construes Section 312(a) (7) as in-
cluding two severable elements—one establishing a rea-
sonable access obligation and the other a specific remedy.
It contends that the obligation element is articulated in
a way that does not expressly identify the entities subject
to the obligation. The obligation is “to allow reasonable
access to or to permit purchase of reasonable amounts of
time for the use of a broadcasting station. . . .” Given
the purpose of the statute, the FCC argues, it is reason-
able to read Section 312(a) (7) as imposing an obliga-
tion to provide access not just upon individual stations
but upon those who, by practice and contractual relation-
ship, control the best practical means of efficiently acquir-
ing national access—to wit, the networks.
When Congress created an explicit access obligation
in Section 312(a) and amended Section 315(a) to rein-
force the existence of such an obligation, it did so “to
give candidates for public office greater access to the
media so that they may better explain their stand on
the issues and thereby more fully and competely inform
the voters.” 7'* Plainly, Congress wanted to enhance the
ability of candidates for federal office to communicate
with the electorate. At the time, it already was estab-
lished practice for networks to grant political time to
presidential candidates seeking a national audience.
Given its objective of expanding candidates’ access to the
118 See note 32 supra.
49a
people, Congress could hardly have intended to omit the
most important channel of communication available to
candidates."* The access right accorded to presidential
candidates by Section 312(a) (7) would have been robbed
of much of its intended significance if the candidate were
forced to go from station to station around the country
assembling his own network. The time, expense, and co-
ordination difficulties of such an endeavor would deter
many candidates, and would be impossible for others.’
The discussion in Congress surrounding the enactment
of Section 312(a) (7) reveals that the legislators voting
on the bill used the terms “broadcasting station,” “broad-
caster,” “license,” and “network” interchangeably.
119 One aspect of the Commission’s interpretation of net-
works-licensee obligations is worth noting here. Affiliates are
likely to receive access demands in addition to those resulting
from network offers of political programming. For example,
presidential candidates seeking time on individual stations
during local primaries, congressional] candidates, and candi-
dates for state and local offices may make requests to affili-
ates. The Commission recognized that “some individual
affiliates might reasonably decline” to carry a political broad-
cast supplied by the network because of such special factors.
App. at 314. Such flexibility is both necessary and laudable.
120 The practical consequence of network immunity from
Section 312(a) (7) would be most extreme in the final days
of a general presidential election. Candidates would be forced
to canvas the country for stations willing to broadcast last
minute appeals to the voters. Congress could not have in-
tended such a practical bar to televised communications be-
tween presidential candidates and the national electorate on
the eve of an election.
121 See, e.g., 116 Cong. Rec. R. 5717, 5719 (1970) (re-
marks of Sen. Pastore), 5724 (remarks of Sen. Baker), 5732
(remarks of Sen. Yarborough), 5637 (remarks of Sen. Cot-
ton), 8056 (remarks of Rep. Martin), 8057 (remarks of
50a
Indeed, when presenting the Conference Report to the
Senate, Senator Pastore, the bill’s sponsor, referred to
networks and individual broadcasters interchangeably.’”*
Thus, there is support in the legislative history for the
contention that Congress intended Section 312(a) (7) to
apply to the networks.
Even if Section 312(a) (7) by itself does not afford
the Commission power to mandate reasonable network
access, such jurisdiction is “reasonably ancillary” to the
effective enforcement of the individual licensee’s Section
312(a)(7) obligations and, hence, within the Commis-
sion’s statutory authority."** The Communications Act
gives broad authority to the Commission to regulate all
“interstate and foreign communication by wire, or
radio,” '** and defines these communications as
the transmission of .. . signals, pictures, and sounds
of all kinds, including all instrumentalities, facilities,
apparatus, and services (among other things, the
receipt, forwarding, and delivery of communications)
incidental to such transmission.’™
Other substantive provisions of the Act dictate that the
Commission is “to make special regulations applicable
Rep. MacDonald), 8069 (remarks of Rep. Springer), 8071-
72 (remarks of Rep. Broyhill), 8074 (remarks of Rep. Tier-
nan), 8075 (remarks of Rep. Vanik), 8078 (remarks of Rep.
Murphy), 8082 (remarks of Rep. Springer), and 8083 (re-
marks of Rep. Eckhardt).
122117 Cong. Rec. S. 21638 (daily ed., 92d Cong., 1st Sess.,
Dec. 14, 1971).
128 United States v. Southwestern Cable Co., 392 U.S. 157,
178 (1968).
12447 U.S.C. 152(a) (1976). See also National Broadcast-
ing Company, Inc. v. United States, 319 U.S. 190, 219 (1943).
125 47 U.S.C. 158(a)-(b) (1976).
5la
to radio stations engaged in chain broadcasting,” '* to
“encourage the larger and more effective use of radio in
the public interest,’*? and to “make such rules and regu-
lations and prescribe such restrictions and conditions, not
inconsistent with law, as may be necessary to carry out
the provisions of this Act.” '** Moreover, in applying
these provisions, the Commission can regulate network
practices that do not serve the “public interest, conveni-
ence, and necessity.” ?*°
The Supreme Court confirmed the broad and expansive
authority of the Commission to regulate broadcasting
activities in U.S. v. Southwestern Cable Co.’ There, the
Commission had issued cable system signal carriage rules
even though the Communications Act did not expressly
authorize regulation of the cable industry. The Court
stated:
The Commission has reasonably found that the suc-
cessful performance of [its broad responsibilities for
the orderly development of an appropriate system of
local television broadcasting] demands prompt and
efficacious regulation of community antenna televi-
sion systems. ... [W]e may not, “in the absence of
compelling evidence that such was Congress’ inten-
tion . . . prohibit administrative action imperative
for the achievement of an agency’s ultimate pur-
99 131
poses.
12647 U.S.C. 3038(i) (1976).
127 47 U.S.C. 303(g) (1976).
128 47 U.S.C. 308(r) (1976).
12947 U.S.C. 302(a) (1976).
190 392 U.S. 157 (1968).
181 Jd, at 177, quoting Permain Basin Area Rate Cases, 390
U.S. 747, 780 (1968).
52a
The Court defined the Commission’s authority to regu-
late as
restricted to that reasonably ancillary to the effec-
tive performance of the Commission’s various re-
sponsibilities fur the regulation of television broad-
casting.’™
The Commission’s action in applying Section 312 (a)
(7) to the networks is an exercise of its power “reason-
ably ancillary” to the effective enforcement of the
provision.
VI. MOOTNEsSS
Prior to oral argument, the court asked the parties
to submit papers addressing the question of mootness.
The court’s request was prompted by the fact that
CMPC had agreed to accept a 5-minute segment on CBS
in December and had contracted to buy a 30-minute seg-
ment on ABC in January. The Petitioners, the Respond-
ents, and CMPC as amicus curiae submitted briefs on
this question. The parties unanimously contended that
the cast is not moot. We agree. '
This case presents a situation where a short-term
administrative order is “capable of repetition, yet evad-
ing review.” Southern Pacific Terminal v. ICC, 219 U.S.
182 Td, See also Mt. Mansfield TV, Inc. v. FCC, 442 F.2d
470, 480 (1971) ; General Telephone Co. of Calif. v. FCC, 413
F.2d 390, 403 (1969). In contrast to FCC v. Midwest Video
Corp. (Midwest II), which is cited by the networks, the Com-
mission here imposed on the targets of its ancillary jurisdic-
tion (the networks) an obligation of a character which
could be imposed on individual television licensees. Congress
itself has identified reasonable access to broadcast facilities
as a statutory goal. Clearly, the Commission has authority
to regulate the networks “with a purpose affirmatively to
promote [a] goal pursued in the regulation of television
broadcasting.”
53a
498, 515 (1911). The Supreme Court has recently articu-
lated two conditions implicit in the Southern Pacific
formulation:
(1) the challenged action was in its duration too
short to be fully litigated prior to its cessation or
expiration and (2) there was a reasonable expecta-
tion that the same complaining party would be sub-
jected to the same action again.
Here it is clear we have a short-term situation. More-
over, it is certain that the parties will confront each other
in this situation again.
In the context of elections where fragile rights are at
stake, courts must be careful to avoid dismissing liti-
gation as moot.'* In Flory v. FCC,’* for example, the
Seventh Circuit rejected a contention that an appeal of
an FCC decision under Section 315 was mooted by the
fact that the election in question had already occurred.
Indeed, the Supreme Court has indicated that utilization
of the “capable of repetition” exception is especially ap-
propriate where the issue is the interpretation of a
statute that impacts upon the electoral process.
The ‘capable of repetition, yet evading review’ doc-
trine, in the context of election cases, is appropriate
when there are ‘as applied’ challenges as well as in
the more typical case involving only facial attacks
[on a statute]. The construction of the statute, an
understanding of its operation,.2nd possible constitu-
tional limits on its application, will have the effect of
simplifying future challenges, thus increasing the
138 Gannett Co. v. DePasquale, 99 S. Ct. 2898, 2904 (1979),
quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975).
184 See, e.g., Moore v. Ogilvie, 394 U.S. 814 (1968).
185 §28 F.2d 124 (7th Cir. 1975).
54a
likelihood that timely filed cases can be adjudicated
before an election is held.'*®
That is exactly the case at hand.
VII. CONCLUSION
We hold today that Section 312(a)(7) of the Com-
munications Act does create an affirmative right of access
in candidates for federal elective office.
We hold that, in implementing this right of access, the
FCC has articulated reasonable standards designed to
minimize governmental intrusion into broadcasting and
to maximize respect for the editorial discretion of broad-
casters, while at the same time advancing the important
statutory purpose of candidate access. Under these stand-
ards, the obligation (or lack thereof) of a network or
licensee to provide access to a candidate for federal office
is judged in two stages. First, no request for time need
be granted prior to the start of the election campaign,
a date determined by the Commission with reference to
all relevant facts and circumstances. Second, once the
campaign has begun, individual requests by candidates
must be treated individually by the network or licensee.
They may be denied only with advertence to factors
enunciated by the Commission, and the reasons for deny-
ing the individual request must be articulated. Across
the board denials will not be tolerated. The Commission,
for its part, will not substitute its judgment for that of
the network or licensee in handling individual requests.
It will confine itself to the task of ensuring that the
broadcaster has considered and addressed all the relevant
factors in the individual case and that the offered expla-
nation for the decision is reasonable.
We hold that Section 312(a)(7), thus interpreted, is
consistent with the requirements of the Constitution.
196 Storer v. Brown, 415 U.S. 724, 787 n.8 (1974).
55a
We hold that the FCC is justified in applying Section
312(a) (7) to the networks.
And, finally, we hold that in the cases before us the
Commission properly found that the networks had failed
to fulfill the obligation imposed upon them by Section
312 (a) (7).
We therefore affirm.
So ordered.
56a
TAMM, Circuit Judge, concurring: When government
regulation of our system of freedom of expression’ calls
for a federal agency to decide whether and to what extent
the “individual needs” of particular candidates for fed-
eral office demand that they be heard on the radio and
television airwaves, the danger of nonneutral government
decisionmaking raises grave first amendment concerns.
Although I join Judge Bazelon’s fine opinion for the
court, I write separately to discuss the danger that I
perceive and to explain my reasons for concurring de-
spite this danger.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
(1969), the Supreme Court held that the first amendment
does not always prevent the federal government from
regulating radio and television broadcasts on the basis
of their content. In particular, the Court endorsed the
Federal Communications Commission’s “fairness doc-
trine,” which imposes a twofold duty on the broadcaster:
“The broadcaster must give adequate coverage to public
issues, and coverage must be fair in that it accurately
reflects the opposing views.” Id. at 377 (citations omit-
ted). In the form approved by the Supreme Court,’ the
fairness doctrine imposes only a general obligation on
broadcast licensees, and broadcasters retain wide flexi-
bility concerning the manner in which they will satisfy
this obligation.* The Court has stated that the Commis-
1 See generally T. EMERSON, THE SYSTEM OF FREEDOM OF
EXPRESSION (1970).
2The Court’s decision in Red Lion did not require “ap-
prov[al] of every aspect of the fairness doctrine.” 395 U 5.
at 396.
3“At center stage of the Commission’s regulatory scheme
is its determination that broadcasters should have maximum
editorial discretion in deciding how to fulfill fairness doctrine
obligations.” American Security Council Educ. Foundation
v. FCC, 607 F.2d 488, 445 (D.C. Cir. 1979) (en banc), cert.
denied, 100 S.Ct. 662 (1980).
57a
sion’s only responsibility under the doctrine “is to judge
whether a licensee’s overall performance indicates a sus-
tained good-faith effort to meet the public interest in
being fully and fairly informed.” Columbia Broadcasting
System, Inc. v. Democratic National Committee, 412 U.S.
94,127 (1973).
The Court in Red Lion also affirmed the constitutional-
ity of three right-to-reply doctrines. Two of these, the
“personal attack” and the “political editorial” rules, are
administratively developed offshoots of the general fair-
ness doctrine:
When a personal attack has been made on a figure
involved in a public issue, .. . the individual attacked
himself [must] be offered an opportunity to re-
spond. Likewise, where one candidate is endorsed
in a political editorial, the other candidates must
themselves be offered reply time to use personally
or through a spokesman. These obligations differ
from the general fairness requirement that issues be
presented, and presented with coverage of competing
views, in that the broadcaster does not have the
option of presenting the attacked party’s side him-
self or chocsing a third party to represent that side.
But insofar as there is an obligation of the broad-
caster to see that both sides are presented, and inso-
far as that is an affirmative obligation, the personal
attack doctrine and regulations do not differ from
the preceding fairness doctrine.
395 U.S. at 378. The third right-to-reply doctrine, the
equal-time rule, is statutory in origin. Section 315 of
the Communications Act of 1934, as amended (Act), 47
U.S.C. § 315 (1976), provides: “If any licensee shall
permit any person who is a legally qualified candidate for
any public office to use a broadcasting station, he shall
afford equal opportunities to all other such candidates for
that office in the use of such broadcasting station... .”
58a
Id. § 315(a). See Red Lion Broadcasting Co. v. United
States, 395 U.S. at 391.4
Under Red Lion, “the right of the viewers and listeners,
not the right of the broadcasters, . . . is paramount,” id.
at 390, particularly when what is at stake is “ ‘speech
concerning public affairs,” id. (quoting Garrison v.
Louisiana, 379 U.S. 64, 74 (1964)). See also FCC v.
National Citizens Committee for Broadcasting, 436 U.S.
775, 798-800 (1978). Nonetheless, the first amendment
also values broadeaster discretion. As Chief Justice
Burger noted in Celumbia Broadcasting System, Inc. v.
Democratic Nationa! Committee, 412 U.S. 94 (1973),
[The] role of the Government as an “overseer” and
ultimate arbiter and guardian of the public interest
and the role of the licensee as a journalistic “free
agent” call for a delicate balancing of competing in-
terests. The maintenance of this balance for more
than 40 years has called on both the regulators and
the licensees to walk a “tightrope” to preserve the
First Amendment values written into the Radio Act
and its successor, the Communications Act.
Id. at 117 (opinion of Burger, C.J.). As Judge Bazelon’s
opinion persuasively demonstrates, the limited access
scheme created by section 312(a)(7) of the Act, 47
* These right-to-reply doctrines would be intolera»le if ap-
plied to the print media. See Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974). A different rule applies
to broadcasters on the theory that it is legitimate for the
government to allocate the use of a finite number of broad-
cast frequencies, and it is therefore legitimate for the gov-
ernment to reallocate part of the use of a frequency previously
granted to a particular licensee. See Red Lion Broadcasting
Co. v. FCC, 395 U.S. at 388-92. See also National Broad-
casting Co. v. United States, 319 U.S. 190, 226 (1943) ; Fed-
eral Radio Comm’n v. Nelson Bros. Bond & Mortgage Co.,
289 U.S. 266, 282 (1933).
59a
U.S.C. § 312(a) (7) (1976), as interpreted and applied
by the Commission, is consistent with these principles.
There is another principle, however, that limits the
ability of the government to regulate broadcasting: al-
though the government may play a role in regulating the
content of broadcast communications, that role must be
carefully neutral as to which speakers or viewpoints are
to prevail in the “marketplace of ideas.” Thus, while the
government may properly take action to encourage a wide-
open debate on public issues,® see Buckley v. Valeo, 424
U.S. 1, 92-93 & n.127 (1976), it may not regulate in a
manner that advances “one side of an issue rather than
the other,” A. MEIKLEJOHN, POLITICAL FREEDOM 27
(1960).° As Justice Stevens noted in FCC v. Pacifica
Foundation, 488 U.S. 726 (1978), “it is a central tenet
of the First Amendment that the government must re-
main neutral in the marketplace of ideas.” Jd. at 745-46
(opinion of Stevens, J.). See Columbia Broadcasting Sys-
tem, Inc. v. FCC, 454 F.2d 1018, 1034 (D.C. Cir. 1971)
(there is a “requirement of government neutrality in the
area of the First Amendment”). See also Red Lion
5 This country has “a profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open.” New York Times Co. v. Sullivan, 376
U.S. 254, 270 (1964).
® There is a similar requirement of neutrality under the
establishment-of-religion clause of the first amendment, in
that government may not “prefer one religion over another.”
Everson v. Board of Educ., 330 U.S. 1, 15 (1947). The
requirement of religious neutrality goes further, however,
by precluding the government from aiding the cause of re-
ligion generally, even if it could do so without favoring any
particular religion. See id. The government is, on the other
hand, permitted to further the general cause of freedom of ex-
pression. See Buckley v. Valeo, 424 U.S. 1, 92-98 & n.127
(1976).
60a
Broadcasting Co. v. FCC, 395 U.S. at 396 (constitutional
problems would arise if “the official government view
[were to] dominat[el public broadcasting”) ; National
Broadcasting Co. v. United States, 319 U.S. 190, 226
(1943) (constitutional problems would arise if the Fed-
eral Communications Commission were authorized “to
choose among applicants [for licenses] upon the basis of
their political, economic or social views”). Cf. Buckley v.
Valeo, 424 U.S. at 48-49 (government may not “restrict
the speech of some elements of our society in order to
enhance the relative voice of others”’).” Accordingly,
broadcast regulation must be tailored to guard against
government action that is nonneutral, 7.e., government
action that, by purpose or effect, tends to enhance the
persuasive appeal of a particular speaker or viewpoint
vis-a-vis opposing speakers or viewpoints.*®
7 Judge Bazelon analogizes the government action here
under review to a “time, place, and manner” restriction.
Maj. Op. at 46 n.116. Significantly, however, such restric-
tions may not “ ‘slip from the neutrality of time, place, and
circumstance into a concern about content.’” Police Dep’t v.
Mosley, 408 U.S. 92, 99 (1972) (quoting Kalven, The Concept
of the Public Forum: Cox v. Louisiana, 1965 Sup. CT. REV.
1, 29). Although broadcast regulation may to some extent
“slip into a concern about content,” it may not lose sight
of the fundamental requirement of neutrality as between
particular speakers or viewpoints.
8 The requirement of neutrality here, as in other contexts,
may be “notoriously difficult” to define. See King’s Garden,
Inc. v. FCC, 498 F.2d 51, 56 (D.C. Cir.), cert. denied, 419
U.S. 996 (1974). At least as to its “effect” component, for
example, the requirement c&nnot be absolute; it would be
impracticabie to demand that content-based regulation never
operate to favor, even in the slightest degree, one viewpoint
over another. See also note 9 infra. One thing is clear,
however: whatever its application in other contexts, the
principle of neutrality is at its zenith in the context of
6la
The broadcast regulation approved in Red Lion is con-
sonant with this first amendment principle. The basic
fairness doctrine protects against government nonneu-
trality by leaving broad and flexible discretion with the
broadcaster; the Commission’s circumscribed role in en-
forcing broadcaster obligations allows little opportunity
for nonneutral government decisionmaking. The right-to-
reply doctrines also limit the potential for partiality,
this time by virtually eliminating the need for discretion
on the part of anyone: if the licensee broadcasts a spe-
cified type of communication, the applicable right-to-
reply obligation arises in a relatively “automatic” fash-
ion.* More important, except for the very general
and rarely enforced™ first prong of the basic fairness
political speech. Difficulty of definition, of course, does not
negate the importance of the basic constitutional require-
ment, nor does it excuse the judiciary from the task of
formulating and applying fundamental principles of constitu-
tional law.
®To be sure, even in deciding whether a fairness or a
right-to-reply obligation has attached and, if so, whether
it has been satisfied, the Commission might take action that
improperly favors a particular speaker or viewpoint. This
limited danger, however, is one that we tolerate because of
the countervailing first amendment benefits that these doc-
trines generally produce by encouraging a balanced coverage
of issues of public importance. See also note 8 supra.
10 See American Security Council Educ. Foundation v. FCC,
607 F.2d 438, 444 n.16 (D.C. Cir. 1979) (en banc), cert.
denied, 100 S.Ct. 662 (1980); Simmons, The Problem of
“Issue” in the Administration of the Fairness Doctrine, 65
CAL. L. REV. 546, 578-86 (1977).
11 The first prong of the fairness doctrine, the obligation
to devote adequate broadcast time to the coverage of public
issues, has been only minimally enforced by the Commission.
See Comment, Enforcing the Obligation to Present Contro-
versial Issues: The Forgotten Half of the Fairness Doctrine,
62a
doctrine, which requires adequate coverage of public
issues, all of the regulatory devices approved in Red
Lion are designed to ensure that a broadcaster who pre-
sents one side of a controversy will balance that coverage
with a broadcast of the opposite view. This is the essence
of evenhandedness, the antithesis of partiality.
Section 312(a) (7), as interpreted and applied by the
Commission, presents a different and more suspect form
of regulation. It is designed not to achieve a balanced
presentation of ideas, but rather to grant air time to
particular speakers for initial presentations of their
views. The broadcaster obligation it creates, unlike that
under the first prong of the fairness doctrine, is specific
in nature and, as this case suggests, is likely to be en-
forced with some vigor.
The danger of government nonneutrality under section
312(a) (7) is exacerbated by the Commission’s emphasis,
in its standards governing the right of access, on the
“individual needs” of the candidate. Whether and to
what extent a candidate is entitled to broadcast access
depends on a weighing of his “individual needs” against
the other relevant considerations detailed by the Com-
mission. This evaluation may lead to a determination, for
10 Harv. C.R.-C.L. L. REv. 187 (1975). “[T]he obligation to
present controversial issues has been essentially unenforced
The Commission has consistently sought to avoid even the
appearance of regulating the content of programming and
thus has continually left to the licensee’s discretion the deter-
mination of which issues are sufficiently important and con-
troversial to warrant coverage.” Jd. at 153. Indeed, at least
in the view of two commentators, the obligation had never
been enforced prior to the Commission’s 1976 decision in
Representative Patsy Mink, 59 F.C.C.2d 987 (1976). See
Simmons, supra note 10, at 578-82; Comment, Power in the
Marketplace of Ideas: The Fairness Doctrine and the First
Amendment, 52 TEX. L. REV. 727, 739 (1974).
63a
example, that a candidate requesting a half hour for a
particular purpose may instead by entitled to only fifteen
minutes, see Maj. Op. at 35-36; another candidate, on the
other hand, may be found entitled to the full half hour
that he seeks.
Thus, without regard to any prior broadcast coverage
of opposing candidates, an agency of the federal govern-
ment is authorized to decide, based in significant part on
the candidate’s “individual needs,” whether and to what
extent a given political candidate is entitled to be heard
on the nation’s airwaves. Although the Commission’s
standards are designed to apply neutrally to all candi-
dates, and call for a rather deferential oversight of
broadcaster determinations, there is nonetheless a much
greater potential than in Red Lion for government favori-
tism, perhaps wholly unintentional, of particular speakers
and ideas.”
Moreover, unlike the regulatory approaches upheld in
Red. Lion, section 312(a) (7) deals solely with candidates
for federal political office; in evaluating the danger of
government nonneutrality, we cannot ignore the fact that
members of the Federal Communications Commission
may well have more than a passing interest in the out-
come of federal elections, particularly presidential con-
tests.1* Although the Commission is independent of his
12 As CBS correctly observes, there is an “inherent danger
in having a federal agency make determinations as to how
much access and what kinds of access particular candidates
should have, a danger which exists because of the risk that
the agency under such circumstances could favor one candi-
date over another.” Reply Brief of Petitioner CBS Inc. at 14.
13 CBS contends that “[t]he inherently political nature of
the question to be considered will draw the Commission into
situations where its impartiality will be subject to obvious
question. The danger that standards will not be applied
64a
direct control, the President of the United States appoints
all seven of its members and designates its chairman.
See 47 U.S.C. §154(a) (1976). Commissioners serve
seven-year terms, and vacancies occur approximately once
a year. Id. § 154(c).* To the extent that openings arise,
the President may, and typically does, ensure that four
of the seven Commissioners are members of his own
political party. See id. §154(b).” As the present case
suggests, the campaign for the Presidency itself is likely
to be the most important occasion for the application of
section 312(a) (7). The President and his party obviously
have a strong interest in the outcome of a presidential
election, particularly if the President himself is a candi-
date for reelection, and, by the time the campaign begins,
the incumbent President will have appointed several (if
a first-term President) or perhaps all (if a second-term
President) of the sitting Commissioners. Even if a
Commissioner makes every effort to remain impeccably
neutral, it is nonetheless possible, especially in presi-
dential campaigns, that his partisan and political affilia-
tions might subconsciously influence his decisionmaking.**
neutrally necessarily suggests the unconstitutionality of the
system of government regulation.” Brief for Petitioner CBS
Inc. at 44 (citation omitted).
4In fact, due to deaths and resignations, many recent
Presidents have been able to make more than one appointment
per year. See Robinson, The Federal Communications Com-
mission: An Essay on Regulatory Watchdogs, 64 VA. L. REV.
169, 184 (1978).
15 Even the limitation that no more than four Commis-
sioners may be members of the same political party “is evaded
easily if an appointee is willing to be labeled an ‘independ-
ent.’” Id. at 184 n.36.
16 Regrettably, there is some evidence that the Commission
has, on occasion, been subjected to direct political pressure.
In a 1970 memorandum describing administration efforts to
65a
Despite these dangers, however, section 312(a) (7)
makes a tremendous positive contribution to the cause of
freedom of expression.’ Candidate access to radio, and
especially television, is exceedingly important in a nation
that places such extraordinary reliance on these infor-
mational media,’* and we dare not forget that there is
achieve more favorable press coverage by the three major
television networks, Charles Colson, Special Counsel to then
President Richard M. Nixon, indicated that, “as soon as we
have a majority,” he would pursue with Dean Burch, the
newly-appointed Commission Chairman, a Commission ruling
that would have “an inhibiting impact on the networks.”
Memorandum from Charles W. Colson to H.R. Haldeman,
Sept. 25, 1970, reprinted in Bazelon, FCC Regulation of the
Telecommunications Press, 1975 DUKE L.J. 218, 247. In a
taped conversation in 1972, President Nixon himself threat-
ened to use the Commission to retaliate against The Wash-
ington Post for unfavorable coverage: “The main, main
thing is the Post is going to have damnable, damnable prob-
lems out of this one. They have a television station... and
they’re going to have to get it renewed.” Statement of Richard
M. Nixon to H.R. Haldeman and John Dean, Sept. 15, 1972,
quoted in S. REP. No. 981, 93rd Cong., 2d Sess. 149 (1974)
(final report of Senate Watergate committee). For a further
discussion of the potential for political use of the Commission,
see Comment, Enforcing the Obligation to Present Contro-
versial Issues: The Forgotten Half of the Fairness Doctrine,
10 Harv. C.R.-C.L. L. REv. 137, 157-58 (1975). Cf. Columbia
Broadcasting Sys., Inc. v. FCC, 454 F.2d 1018, 10386 (1971)
(Tamm, J., concurring) (concluding, “although hesitantly,
[that in the case then under review] the Commission ha[d]
taken a political role of interference contrary to all of the
teachings of administrative decision-making” ).
17 See also Buckley v. Valeo, 424 U.S. 1, 92-98 & n.127
(1976) ; ncte 6 supra.
18J—n a 1974 survey of prominent educators, businessmen,
labor leaders, and government officials, television was rated
the most powerful institution in the United States. The
66a
also a potential for evil in leaving the question of access
in the hands of private broadcasting interests. As the
Supreme Court warned in Red Lion, we should guard
against
station owners and a few networks [having] un-
fettered power to make time available only to the
highest bidders, to communicate only their views on
public issues, people and candidates, and to permit
on the air only those with whom they agree[]. There
is no sanctuary in the First Amendment for unlim-
ited private censorship operating in a medium not
open to all. “Freedom of the press from govern-
mental interference under the First Amendment does
not sanction repression of that freedom by private
interests.” Associated Press v. United States, 326
U.S. 1, 20 (1945).
395 U.S. at 392. By creating a right of access in favor
of candidates for this country’s highest offices, section
312(a)(7) increases the opportunity for these speakers
to reach listeners with the discussion of crucial political
issues.
The candidate, no less than any other person, has a
First Amendment right to engage in the discussion
of public issues and vigorously and tirelessly to ad-
vocate his own election and the election of other
candidates. Indeed, it is of particular importance
White House ranked second, the Supreme Court third. Who
Runs America? A National Survey, U.S. NEws & WoRLD
REP., Apr. 22, 1974, at 30. See also S. SIMMONS, THE FAIR-
NESS DOCTRINE AND THE MEDIA 1-2 (1978).
1° Cf. Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d
16, 62 (D.C. Cir. 1972) (“The first amendment was never
intended to protect the few while providing them with a
sacrosanct sword and shield with which they could injure the
many.”’), cert. denied, 412 U.S. 922 (1978).
67a
that candidates have the unfettered opportunity to
make their own views known so that the electorate
may intelligently evaluate the candidates’ personal
qualities and their positions on vital public issues
before choosing among them on election day.
Buckley v. Valeo, 424 U.S. 1, 52-53 (1976).% To give
increased play to ideas touching the very essence of our
democracy is a goal that surely lies near the heart of the
first amendment.
Thus, section 312(a) (7), as implemented by the Com-
mission, stands precariously on the first amendment tight-
rope. It raises the serious danger of nonneutral govern-.
ment action favoring one speaker or viewpoint over
another. Yet it also makes a great contribution to the
cause of encouraging an “uninhibited, robust, and wide-
open” ** discussion of issues central to our system of
government.
We could not give effect to the statute’s positive con-
tribution to first amendment values in the absence of
adequate safeguards for controlling the danger of non-
neutrality. In my view, the Commission’s standards for
implementing section 312(a)(7), as long as they are
carefully followed, are sufficient to save the statute from
constitutional infirmity. In particular, the Commission
is strictly limited to the narrow role of overseeing broad-
caster determinations concerning access, determinations
that are entitled to great deference before the Commis-
sion. Moreover, both at the broadcaster level and before
the Commission on review, analysis of the “individual
20 See also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971) (“it can hardly be doubted that the [first amend-
ment] has its fullest and most urgent application precisely to
the conduct of campaigns for political office’).
21New York Times Co. v. Sullivan, 876 U.S. 254, 270
(1964). See note 5 supra.
68a
needs” factor must focus solely on the candidate’s needs
as stated by the candidate and, giving due consideration
to the other relevant standards set forth by the Com-
mission, how those needs can be accommodated by the
broadcaster. The agency is obliged to affirm any broad-
caster decision that is reasonable under the Commission’s
articulated standards, and it disapproved the network
decisions in the present case only because the networks
had, in effect, imposed “fiat bans” on the sale of the
type of time that the Carter-Mondale Committee sought.
If the networks had instead given reasonable considera-
tion to the particular request that was made, the Com-
mission would have had no choice but to approve their
access decisions.”
The Commission, through its implementation of section
312(a) (7), has come perilously close to falling into the
chasm of impermissible government action. Nonetheless,
as long as the agency consistently maintains a very
limited “overseer” role consistent with its obligation of
careful neutrality, its action does not contravene the
Constitution. With this understanding, I concur in the
opinion of the court.
22 Another significant factor in deciding the constitutionality
of § 312(a) (7), as implemented, is the presence of the equal-
time provision in § 315 of the Act, 47 U.S.C. §315 (1976).
Section 315 generally will create a right to reply in favor
of the opponents of any candidate granted access under
§ 312(a) (7), thus serving as an important safety net by
mitigating the effect of any nonneutrality that might creep
into the § 312(a) (7) decisionmaking process. If this were not
the case, § 312(a) (7), as implemented, would raise a differ-
ent and more troublesome:-constitutional question. That ques-
tion, of course, is one for another day.
69a
APPENDIX B
FCC 79-750
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
IN RE COMPLAINT OF
CARTER-MONDALE PRESIDENTIAL COMMITTEE, INC.
against
THH ABC, CBS and NBC TELEVISION NETWORKS
MEMORANDUM OPINION AND ORDER
(Adopted: November 20, 1979;
Released: November 21, 1979)
BY THE COMMISSION: COMMISSIONERS FERRIS, CHAIRMAN
AND FOGARTY ISSUING A SEPARATE JOINT STATEMENT;
COMMISSIONERS LEE, WASHBURN AND JONES DIS-
SENTING AND ISSUING STATEMENTS; COMMISSIONER
QUELLO ISSUING A SEPARATE STATEMENT.
1. On October 29, 1979, the Commission received a
complaint from the Carter-Mondale Presidential Com-
mittee, Inc. (the Committee) under the “reasonable ac-
cess” provision of Section 312(a)(7). The Committee
alleges that the ABC, NBC and CBS Television Networks
violated the provision by refusing to sell it a thirty-
minute prime time program to be used by the President
in his capacity as a candidate for the Democratic nomi-
nation. The Committee states that the time requested
will be used for an appearance by the President shortly
after he declares his candidacy; that whether ‘the Presi-
dent is a legally qualified candidate is not an issue since
*
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none of the networks have made a claim to the contrary;
and that in any event there should be no question as to
whether he is legally qualified once a formal declaration
of candidacy has been made.
2. The Committee claims that the reasons given by the
networks for their refusal to sell the time are “totally
insufficient to justify their actions.” Specifically, it states
that the contention of NBC and ABC that it is “ ‘too
early’ to begin a presidential campaign” is “insufficient”
since significant amounts of news coverage have been
devoted to the campaign and “actions speak louder than
words”; that the allegation of CBS and NBC that they
would have to honor requests of other candidates is “suf-
ficient” since there is a “relatively limited number of
national candidates . . . that are willing and able to
purchase network . . . time”; and that CBS’ allegation
that “it would involve ‘massive disruptions’ of [its] regu-
lar .. . schedules” is “insufficient” because only a few
half-hour periods of entertainment programming would
have to be rescheduled. In this connection, it states that
CBS has offered to sell a five-minute period at 10:55
p.m on December 8, 1979 and another in the daytime.
However, the Committee claims that “[i]t is past the
four day time period requested, insufficient in amount
and unsuitable to the needs of the candidate.” The Com-
mittee also states that further evidence of the networks’
attitude toward their political broadcasting responsibili-
ties can be found in newspaper articles enclosed with
the complaint.
3. The Committee argues that there is no question as
to whether the Commission has jurisdiction to resolve this
matter since the Commission has “long recognized” that
the networks as licensees of the “most important broad-
cast stations in the nation” are subject to its jurisdic-
tion. To support this argument, the Committee cites a
Commission policy statement where we stated that po
T1la
litical broadcasting rate restrictions would be applicable
to networks since networks are, in effect, selling time
on behalf of their affiliates. The Committee further ar-
gues that the networks’ refusals to sell the requested time
constitutes a “blatant denial of reasonable access.” It re-
quests that the Commission order the networks to make
time available for purchase.
4. On October 30, 1979, the Broadcast Bureau re-
quested the networks’ comments on the complaint by
November 5, 1979. All three networks claim that their
refusal to sell the requested time at this point cannot
be found to be an abuse of discretion and that therefore
the complaint should be denied. They argue that such
sales are presently premature and that their decisions
are reasonable in light of the unusually large number of
candidates seeking the major party presidential nomina-
tions. Specifically, ABC states that at least nine candi-
dates have already declared that they will seek the Re-
publican Party nomination, and that a major Republican
leader and two major Democratic leaders have indicated
that they will announce in the next few weeks. CBS
states that at least three Democrats and eleven Repub-
licans are reasonably expected to seek the presidential
nomination. NBC states that there are at least twelve
actual “or potential candidates seeking the presidential
nomination that have held federal elective office or been
governor of a state, plus at least 110 others that have
filed notices of candidacy with the Federal Election Com-
mission. They also argue that the complainant’s asser-
tion that there will only be a “relatively limited” de-
mand for network half-hours is purely speculative and
that the potential for significant disruptions in normal
schedules is real and substantial. Both ABC and NBC
contend that a single state caucus should not be sufficient
to trigger access to national network time and that since
the Democratic convention will not be held until August,
their decision to deny the Committee’s request cannot
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be found to be unreasonable. ABC and CBS both assert
that although the Committee is technically correct that
only other Democratic party candidates would be en-
titled to “equal opportunities,” they do not believe that
they could reasonably decide to grant access to the Demo-
cratic Party and refuse access to the Republican Party.
5. NBC argues that the question before the Commis-
sion is whether the network was unreasonable in reaching
its decision and that its judgment cannot be ruled unrea-
sonable in light of the fact that it has considered the
factors specified in the Commission’s July 1978 Public
Notice relating to the enforcement of Section 312(a) (7).!
NBC asserts that during the preconvention period, the
campaigns are waged on a state-by-state basis and are
best covered by the communications media serving the
state in question. NBC contends that it does not appear
that Section 312(a) (7) applies to networks since it ap-
plies to the use of a “broadcasting station” and it is con-
tained in a section of the Communications Act relating
to license revocation. It claims that even were the net-
works to carry the program in question, there is no assur-
ance that individual stations would choose to broadcast
it; that the sale of the requested time period would re-
quire it to afford equal opportunities to the President’s
legally qualified opponents for the Democratic nomina-
tion; and that absent significantly different factual cir-
cumstances, similar access periods would have to be made
available to legally qualified candidates for the Republi-
can nomination. NBC states that it does not generally
sell individual program periods to commercial advertisers
and that the Commission itself has recognized that rea-
sonable access requires only that the licensee follow its
usual commercial practices. NBC urges the Commission
to recommend that Congress repeal or suspend Section
1 Commission Policy on Enforcing Section 312(a)(7) of the
Communications Act, 68 FCC 2d 1079 (1978).
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315 so that broadeasters will be able to establish “reason-
able limits to the forced disruption of program schedules
[necessary] to present candidates in which the public has
little or no interest.”
6. ABC claims that the only question posed by the
complaint relates to when access should be granted and
that this question may not properly be before the Com-
mission inasmuch as it comes on behalf of a person who
is not yet a legally qualified candidate. It states that it
has decided to sell political time to candidates seeking
nomination at the national political conventions beginning
with the first week of January 1980 and that this deci-
sion is warranted in light of the nature and length of the
presidential campaign. ABC anticipates that numerous
requests for time will be made during the period leading
up to the national election. It asserts that its continuing
news coverage of the campaign insures that “the mixture
of issues, developments . . . and personalities that domi-
nate this early stage of the campaign are brought to the
public’s attention.”
7. In response to the Committee’s claim that the net-
works’ news coverage of the campaign should be taken as
evidence that the compaign has begun, ABC points out
that the legislative intent in adopting the news coverage
exemptions of Section 315 was to foster news coverage
of political campaigns. In light of this intent, ABC ar-
gues that journalistic pursuits should not be used as a
trigger for the “reasonable access” provision since such
a policy would inhibit news coverage of the campaign.
8. CBS states that it has offered to sell two five-minute
time periods to the Committee and that this offer is “fully
consistent with the reasonable access provision.” It as-
serts that campaigns for the presidential nomination
consist of a series of state primary elections, conventions
and caucuses conducted on local levels over many months.
CBS contends that in its judgment the public interest
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does not require preemption of extensive segments of its
national programming for half-hour political broadcasts
at this point in the campaign. It argues that although
the complainant asserts that it does not intend to make
such purchases a regular practice, it cannot bind other
candidates in this regard and that while complainant
argues that this matter should be viewed in light of the
candidates’ needs and not the networks’ beliefs, prior
Commission decisions make clear that the candidates’
desires are not always paramount and that broadcasters
have substantial discretion in this area.
9. CBS states that its decision is supported by Com-
mission precedent. Specifically, it cites Use of Broadcast
and Cablecast Facilities by Candidates for Public Office,
34 FCC 2d 510, 536 (1972), where the Commission stated
that the standard of review in Section 312(a) (7) cases
is one of reasonableness, and Letter to Pawit A. Talmey,
49 FCC 2d 678 (B/e Bur. 1974), where the staff ac-
knowledged that a five-minute time segment constitutes
a program. It also cites our decision in Complaint of
Hon, Pete Flaherty, 48 FCC 2d 838 (1974), where we
emphasized that we would not prescribe a precise formula
for measuring compliance with Section 312(a)(7) and
our 1978 policy statement where we stated that “the pub-
lic is entitled to other kinds of programming than politi-
cal.” Although CBS recognizes that there is a distinction
between senatorial and presidential races, it also relies
on Anthony R. Martin-Trigona, 66 FCC 2d 968 (B/c
Bur. 1977), aff'd 67 FCC 2d 743 (1978), where the staff
denied a complaint of a candidate in a United States
Senate primary that a licensee’s refusal to sell him an-
nouncement time until forty-five days before the election
violated Section 312(a)(7). Despite the fact that the
Committee’s complaint involves a presidential campaign
and not a senatorial campaign, CBS argues that an ad-
verse Commission ruling in this matter would be irrecon-
75a
cilable with the cited authorities because CBS has not
refused to sell prime-time program time to the candidate.
10. The complainant’s response in opposition to the
comments submitted by the networks was filed with the
Commission on November 8, 1979. The Committee takes
issue with the networks’ assertion that it is “too early”
to sell the requested time. It argues that the “national
presidential campaign is now well underway” ® and that
the “networks cannot simply follow their prior practices”
because “Campaign 80” is different from previous elec-
tion years. It argues that CBS has failed to consider the
candidate’s needs in reaching its decision; that the pur-
pose of the proffered program is to “set the tone for the
{[President’s] entire campaign’; and that this purpose
cannot be accomplished at a later date.
11. Citing the networks’ claim that the preconvention
campaigns are conducted on a state-by-state basis, the
complainant argues that the campaigns now underway
are “not a series of isolated local elections, but integrated,
nationwide efforts.” It asserts that “[w]hile the precon-
vention period focuses on obtaining delegates from the
various states, it reality presidential nominating cam-
paigns are nationwide in scope.” As to the networks’
contention that there is a “multiplicity of candidates”
problem, the Committee states that 14 candidates is not
an “inordinate number, particularly when . . . the net-
works have access obligations only toward candidates for
[the one] office [in question]” and that even assuming
2To support this allegation, the Committee relies on the
following facts: (1) CBS altered its regular programming
to move its documentary on Senator Edward M. Kennedy to
Movember 4, 1979 so that it would precede his announcement
of candidacy; (2) CBS news has reported that the Kennedy
campaign is “getting into full swing’; and (8) a debate
between Senator Kennedy and President Carter will be held
on January 7, 1980.
76a
that all 13 other candidates would desire to make a simi-
lar purchase, the networks would only have to make one
half-hour, per week, per network available.
12. Regarding the networks’ claim that substantial
programming disruptions would result from the sale of
the requested time period, the Committee argues that it
gave the networks “considerable leeway in providing
availabilities’ and that the networks regularly make
scheduling changes for their own commercial purposes.
The complainant further argues that if a “multip'icity
of candidates” problem in fact exists, then the networks
would have a responsibility to solve the problem by mak-
ing time available early in the campaign and that of all
the broadcasters in the country, the networks are in the
“weakest” position to raise the “multiplicity of candi-
dates” defense since they have only one group of candi-
dates to serve, namely Presidential candidates.
13. The complainant asserts that the networks place
“excessive reliance on the traditional licensee discretion
concept” since this concept was modified by Congress
when it enacted Section 312(a)(7). If further asserts
that the “essential purpose of enacting Section 312 (a) (7)
was to place new and additional obligations on broad-
casters with respect to candidates for federal office.”
14. On November 9, 1979, the National Association of
Broadcasters (NAB) filed comments on the matter.’ It
argues that in view, of a “mounting series of court deci-
sions [upholding] the vital First Amendment interest in
shielding journalistic decisions made by broadcasters . . .
from Government second-guessing,” it is of the “utmost
importance that the reasonable access provision be inter-
preted... in light of a standard which gives great weight
to the editorial discretion of broadcasters.” The NAB
8’ The NAB filed its comments as amicus curiae, to “under-
score the interest of broadcast licensees in this proceeding.”
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claims that the networks’ decisions not to sell half-hour
programs to Presidential candidates until sometime in
early 1980 is “clearly not unreasonable” since the Demo-
cratic National Convention will not be held until August
11, 1980.
15. The Committee responded to the NAB’s comments
in a letter dated November 9, 1979. It states that “to
the extent that First Amendment considerations are in-
volved in this matter, they firmly support the Commit-
tee’s complaint” because Section 312(a) (7) promotes the
goals of the First Amendment. The Committee further
states that the NAB’s “business as usual approach...
to the positive duties imposed upon broadcasters by Sec-
tion 312(a) (7) shows the importance of the issues raised
by the Committee and the need for a definitive ruling”
and that the “NAB’s concerns for its membership go far
beyond the precise issue which is now before the Com-
mission... .”
16. On November 138, 1979, comments were received
from the National Citizens Committee for Broadcasting
(NCCB), a nonprofit public interest group. NCCB states
that it agrees with the Committee’s contention “that Con-
gress intended that candidates, not broadcasters, should
determine when campaigns begin and when political
broadcast time should be purchased.” NCCB also agrees
with the Committee’s assertion that it is the “viewers’
rights to be informed . . . that were the basis for the
enactment of Section 312(a) (7) and that are primarily
violated by the networks’ refusal.” NCCB asserts that
“the Commission should find that the current presidential
campaign is in full swing and the networks’ willful re-
fusal to provide a half-hour of prime time to the Com-
mittee violates Section 312(a) (7).” NCCB requests that
the Commission clarify two points: (1) whether the net-
works would have a responsibility to provide time to all
legally qualified candidates regardless of party affiliation
78a
once they provide time to Carter, and (2) whether Presi-
dent Carter will be a legally qualified candidate after he
announces his intention to seek reelection even though
he may not have qualified in ten states.
Discussion
Statute and Legislative History
17. Section 312 provides in pertinent part as follows:
(a) The Commission may revoke any station license
or construction permit—
* * * * *
(7) for willful or repeated failure to allow reason-
able access to or to permit purchase of reason-
able amounts of time for the use of a broad-
casting station by a legally qualified candidate
for Federal elective office on behalf of his candi-
dacy.
The statutory language thus authorizes the Commission
to revoke a broadcast station license for failure to allow
a candidate’s reasonable uses of broadcast facilities. The
statutory language, however, does not expressly define
the scope of the Commission’s responsibilities or the pro-
cedures by which it should enforce them.
18. The legislative history of Section 312(a) (7) does
little to clarify those responsibilities and procedures. In
considering Title I of S. 382, the Federal Election Cam-
paign Act of 1971, the Senate Commerce Committee added
the language that is now Section 312(a) (7).* The Senate
* Title I of S. 382 as passed by the Senate also made excep-
tions to the equal opportunities requirement of Section 315
(a) for Presidential and Vice Presidential candidates. In
addition, it set maximum rates to be charged any candidates
for Federal office. For the 45 days before a primary election
and 60 days before a general election, the rates could not
exceed the station’s lowest unit charge for the same amount
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Report on S. 382 establishes that one purpose of Title I
was to “give candidates for public office greater access
to the media.” §S. Rep. No. 92-96, 92d Cong., 1st Sess.,
p. 20 (1971). The second purpose was to “halt the spiral-
ing costs of campaigning for public office.” Jd. The Re-
port adds little more to the rationale underlying Section
312(a) (7). It merely comments that the obligation im-
posed in 312(a) (7) “is inherent in the requirement that
licensees serve the needs and interests of the [communi-
ties] of license,’ and cites the Commission’s 1960 En
Bane Programming Inquiry. S. Rep. No. 92-96, supra.,
at 34.
19. The floor debates are equally uninstructive. Sena-
tor Pastore, the floor manager of S. 382, explained the
purposes of Title I and listed five steps the bill proposed
to accomplish its goals. He did not mention Section 312
(a) (7). See 117 Cong. Ree. 28792 (1971).
20. In trying to discern the purpose of Section 312
(a) (7), it should be remembered that that provision was
part of a statute that required broadcasters to charge
candidates no more than the lowest unit charge in effect
during the 45 days before a primary election and 60 days
before a general election. See 47 U.S.C. § 315(b) (1). It
could be argued that Section 312(a) (7) should therefore
be applied only during those periods. That argument
does not seem to be a cogent one, however. If Congress
intended Section 312(a)(7) to be read in conjunction
with Section 315(b) (1), it would have stated that or at
least provided some indication of that intention (i.e., by
and class of time. Before that, they could not exceed the
charges for comparable use. Title I also limited campaign
spending by candidates. The Conference Committee deleted
the Section 315(a) exceptions.
Title I of the 1971 Act was replaced by the Federal Cam-
paign Act Amendments of 1974. Section 312(a) (7), however,
was not amended or discussed.
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placing the provisions in the same section. We therefore
believe that Congress wanted Section 312(a) (7) to oper-
ate independently of Section 315(b) (1). This seems es-
pecially so since the predecessor bill to S. 382 had an
access clause as a proviso to Section 315 amendments,
which provided for lowest unit charges. See S. 3637, 91st
Cong., 2d Sess., April 15, 1970. Congress then made a
decision to distinguish the access clause from the lowest
unit charge clause.
21. In the absence of further direction, we must also
assume that Congress wanted to delegate to the Commis-
sion broad responsibility to define and implement the scope
of Section 312(a) (7)’s rights and duties. Cf. 47 U.S.C.
§§ 154(i) and (j) and 303(r).
22. Jurisdiction. Before addressing the specific factors
and procedures applicable to a determination under Sec-
tion 312(a) (7), we must first consider our jurisdiction
to act. NBC contends that Section 312(a) (7) does not
apply to networks. It points out that that provision re-
fers to use of a “broadcasting station” and that section
is contained in a section of the Communications Act deal-
ing with license revocation.
23. We believe that NBC’s argument is contrary to
Commission precedent. The Commission has interpreted
the term “broadcasting station” to refer to networks as
well as licensees, albeit in a different context. There are
two separate factors which warrant this conclusion: first,
the networks themselves are television licensees and, sec-
ond, in many programming matters the networks also act
as agents for their respective affiliates. In interpreting
the “lowest unit charge”® provision which refers to use
of a “broadcasting station,” for example, we stated that:
The Commission is of the view that although the
Campaign Communications Reform Act does not spe-
5 47 U.S.C. 315 (b) (1).
8la
cifically refer to networks, the provisions are in-
tended to apply to the purchase of network time.
A network is in a real sense selling time on behalf
of station licensees and the Commission interprets
new Section 315(b) (1) as applying to the combina-
tion of licensees in the network as well as to the in-
dividual licensees.
Use of Broadcast and Cablecast Facilities by Candidates
for Public Office, 34 FCC 2d 510, 525-26 (1972).
24. Similarly, in construing the “equal opportunities” °
provision which also refers to use of a “broadcasting
station,” the Commission stated that:
Although Section 315 obligations attach to individual
station licensees, where a complaint is based on a
network program and addressed to a network or-
ganization . . . the Commission has always accepted
this approach as a basis for issuance of a ruling on
the matter. Additionally, it may be noted that each
of the networks involved herein are licensees of their
“owned and operated” broadcast stations.
Senator Eugene McCarthy, 11 FCC 2d 511, n.1 (1968).
25. We see no reason for adopting a different ap-
proach in cases arising under the “reasonable access”
provision of Section 312(a)(7).7 The fact that the pro-
vision is contained in a section of the Communications
647 U.S.C. 315(a).
7We also draw upon analogous case law under Section
803 (i), 47 U.S.C. §303(i). There the question was whether
the term “radio stations” in Section 303(i) encompassed both
the networks and the individual licensees for purposes of im-
posing on both the Commission’s prime time access rules. The
Court of Appeals held that networks were “radio stations”
for purposes of Section 303(i). Mt. Mansfield Television, Inc.
v. FCC, 442 F.2d 470, 481 (2d Cir. 1971).
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Act dealing with license revocation does not constitute
sufficient justification for a departure from the above
cited precedent. In adopting Section 312(a) (7), Con-
gress was surely aware of the networks’ role in political
broadcasting and the Commission view that the use of
the term “broadcasting station” in the statute was suf-
ficiently broad to give the Commission jurisdiction over
the networks. See, e.g., Committee for Fair Broadcasting,
25 FCC 2d 283 (1970) ; and Eugene McCarthy, supra. If
Congress wanted to apply a more restrictive definition
of “broadcasting station” in Section 312, it had ample
opportunity to do so. Instead, the Congress used ian-
guage similar to that found in Section 315 and did not
even suggest a narrower reading. Therefore, we must
assume that Congress approved a continuation of our
administrative practice. See Red Lion Broadcasting Co.
v. FCC, 395 U.S. 367, 381 (1969). We believe that the
legislative intent in enacting Section 312(a) (7) was both
to impose a general obligation of access on the broadcast
media and to establish license revocation as one remedy
for violation of that obligation.* We will, therefore, in-
terpret Section 312(a) (7) as applying to the combination
of licensees in a network as well as to individual li-
censees. This interpretation is not only the most reason-
able one under the circumstances but also one that is
supported by cases which recognize that the Commission
8 We thus construe Section 312 as including two severable
elements—one establishing a ‘“‘reasonable access” obligation
and the other a specific remedy. We note that in the element
of Section 312(a) (7) which imposes an obligation to afford
reasonable access, there is no specific phrase limiting the ob-
ligation’s applicability to local broadcast stations. Our con-
struction of the statute’s applicability is consistent as well
with our view that the phrase “broadcasting station” in-
cludes networks and with the Congress’ basic purpose in
adopting Section 312 (a) (7).
83a
has ancillary jurisdiction to regulate matters closely
tied to its express statutory obligations.®
26. Our past precedent is not the only factor on which
we base our conclusion that Section 312(a) (7) should be
interpreted to apply to networks. We recognize that
networks sell time as a unit on behalf of their licensees
to presidential candidates. In view of the fact that net-
work licensees hold themselves out as a unit for economic
purposes, they have no reasonable basis for complaining
when subjected to the enforcement of Section 312(a) (7).
27. Moreover, as noted above, the purpose of Section
812(a) (7) was to impose a general obligation of access on
broadcasters. A ruling consistent with NBC’s contention
would mean that there would be no method of securing
national access for presidential candidates to the chain
of network affiliates other than to go to the individual
affiliates themselves. We find that Congress did not in-
tend the reasonable access obligation in Section 312 (a) (7)
to have such severe, practical limitations. In light of the
significant role of the networks in the broadcasting in-
dustry and Congress’ obvious knowledge of that fact, it
would be unreasonable to conclude that Congress intended
® Even if Section 312(a) (7) does not directly impose an ob-
ligation on the networks, such an obligation is clearly im-
posed on network-affiliated licensees under the statute. Our
power to adjudicate complaints involving requests for access
to the networks is surely “‘reasonably ancillary to the effective
performance of the Commission’s various responsibilities.
United States v. Southwestern Cable Co., 392 U.S. 157, 178
(1968) ; see, e.g., National Broadcasting v. United States, 319
U.S. 190 (1943) ; Mt. Mansfield Television, Inc. v. FCC, supra.,
442 F.2d at 481-87; Metropolitan Television Co. v. FCC, 289
F.2d 874, 876 (D.C. Cir. 1961) ; and the statutory provisions
cited therein.
84a
to exempt the networks from the requirement of Section
312 (a) (7).
28. Section 73.1940(a). The Committee contends that
the question as to whether the President is a legally
qualified candidate is not an issue since none of the net-
works has raised the question. We have ruled otherwise.
Thus, in Anthony R. Martin-Trigona (WGN), 67 FCC 2d
743, 745 (1978), the Commission stated:
[T]he burden is on a complainant to establish that
he qualifies under Commission Rules as a legally
qualified candidate before the Commission will take
action on a complaint filed under Section 315 or 312
(a) (7) of the Communications Act. This is true
whether or not a licensee has claimed that the candi-
date is not legally qualified (footnote omitted).
29. The only information that the Committee has pro-
vided to show that the President has qualified within the
meaning of Section 73.1940 is a statement that he will
announce his candidacy prior to the proffered program.
However, a public announcement standing alone is not
sufficient to satisfy our definition of a legally qualified
candidate. Under Section 37.1940(a) (1) a candidate
must also show that he has qualified for the Presidential
primary ballot in the state in question or that he has
10 Insofar as it may be argued that the reach of the “rea-
sonable access” obligation in Section 312(a)(7) can extend
only to those persons granted “any station license or construc-
tion permit,” we note that each of the network corporations is
a multistation licensee fully reachable by our revocation au-
thority. But, in any event, we do not agree that the substan-
tive Section 312(a) (7) obligation is to limited in its reach as
to extend only to network corporate entities that happen to be
also Commission licensees or permittees.
11 Obviously, the President has satisfied the criterion re-
garding his eligibility to hold the office.
85a
made a “substantial showing of bona fide candidacy” in
the state. To qualify nationwide, a candidate must satisfy
this requirement in at least ten states. The Committee
has provided no evidence to show that the President has
made a “substantial showing of bona fide candidacy” in
any state or that he has qualified for any state primary.
30. The Committee has said, however, that the Presi-
dent will have met the qualifications for candidacy in ten
states on or before the earliest date of the requested
broadcast time. Neither CBS nor NBC considers this issue
to be a bar to the granting of the candidate’s request,
since neither network raised it as a reason for denial of
time. ABC did raise the issue tangentially in a footnote
in which it noted that the President was “not yet” a
legally qualified candidate. However, ABC offered noth-
ing to contradict the Committee’s contention that the
President would be a qualified candidate prior to the date
of the broadcast. Nor did ABC base its decision on this
point. In circumstances where the candidate (through his
representative) has said he will be a qualified nationwide
candidate on or before the date for which he requests net-
work time and no one has cast any doubt on the factual
accuracy of the candidate’s assertion, it would be incon-
sistent with the intent of Section 312(a) (7) for the net-
works to deny access on that basis or for the Commission
to decline to review the networks’ decisions.” In these
12 This is particularly so here where the initial step to be-
coming a qualified candidate is entirely in the candidate’s
hands. All he has to do is make an announcement of can-
didacy. The qualification of filing before state election au-
thorities to obtain a place on the ballot is largely ministerial
and often follows almost immediately upon the announce-
ment of candidacy. In lieu of filing with the state authorities,
the presidential candidate may show that he had engaged in
political campaign activities in the requisite number of states.
47 CFR §§ 73.1940 (a) (4) (ii) and (a) (5).
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circumstances, we read the “legally qualified” language as
having an implicit temporal reference to the date(s) of
requested access not the date of the request. This is not
to say, however, that the networks would be acting unrea-
sonably in another context of denying access in part on
the basis of a factual dispute over whether the candidate
will be legally qualified on the access date requested. But,
in the present context of undisputed fact, it would be
contrary to the purpose of Section 312(a) (7) for the net-
works not to be obliged to rule on the access request (or
for the Commission not to review the networks’ decisions)
until the candidate has formally announced and become
qualified. The delay involved in such a procedure might
make it impossible for a candidate to obtain Commission
relief in time to fulfill his plan of using his reasonable
access rights promptly after his announcement of can-
didacy. And even if the networks were otherwise inclined
to grant access, the last-minute scheduling disruption
which would result from postponing the request and re-
sponse until the legal qualification process was techni-
cally completed, might tend to discourage a grant of ac-
cess. However, if the President is not a legally qualified
candidate nationwide at the time of the broadcast, the
networks need not honor the President’s request for time."®
31. Reasonable Access. On July 12, 1978 the Commis-
sion adopted a Report and Order “ clarifying its policy in
enforcing Section 312(a) (7). There we reaffirmed our
policy of relying on the “reasonable, good faith judgments
of licensees as to what constitutes reasonable access under
13 We believe that the foregoing discussion answers NCCB’s
request that we “clarify” whether the President will be a
legally qualified candidate prior to the proposed broadcast.
14 Report and Order, Commission Policy in Enforcing Sec-
tion 312(a)(7) of the Communications Act, 68 FCC 2d 1079
(1978) (Report and Order).
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all of the circumstances present in particular cases.”
the Commission would consider in evaluating any com-
We made it clear, however, that the broadcaster’s discre-
tion is not unlimited. We set forth specific factors that
plaint that a broadcaster was not acting reasonably.’®
The identified factors which we consider relevant to a
Section 312(a) (7) judgment are: the candidate’s needs,
the number of candidates, and the availability of classes
of time. 68 FCC 2d at 1090. While each of these factors
is relevant, we placed particular emphasis on the candi-
date’s needs. Thus, we stated that:
Federal candidates are the intended beneficiaries of
Section 312(a) (7) and therefore a candidate’s desires
as to the method of conducting his or her media
campaign should be considered by licensees in grant-
ing reasonable access.
68 FCC 2d at 1089, n. 14. In taking this factor into
account, the licensee is not simply to substitute its judg-
18 68 FCC 2d at 1094.
16In evaluating “reasonable access” complaint (including
the instant one) we apply a mode of analysis analogous to
that which the courts use in reviewing discretionary deci-
sions by an agency. In determining whether the agency vio-
lated the Administrative Procedure Act by acting in a man-
ner that was “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” (5 U.S.C. § 706(2)
(A)), the reviewing tribunal must take a hard look to see
whether the decision ‘“‘was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971). In the instant context, we may not
simply substitute our de novo judgment regarding the access
request and the networks’ responses, but must “judg[e] the
objective reasonableness” of the networks’ explanation of
their actions. Straus Communications, Inc., v. FCC, 530 F.2d
1001, 1011 (D.C. Cir. 1976).
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ment regarding the candidate’s needs for the candidate’s
own assessment of those needs, but the licensee does retain
some discretion to evaluate the reasonableness of that
assessment in the broad sense and to weigh that factor
against other factors which we have said are relevant.
The Commission further stated that, absent
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