Petition for Writ of Certiorari — Branch v. Federal Communications Commission

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(i) Supreme Court, U.S,

OCT 16 B87

| ® goserH F. SPANIOL, JR.

i CLERK

No. i

IN THE

Sipreme Court of the Wuited States

OCTOBER TERM, 1987

WILLIAM H. BRANCH,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Robert L. Corn*

Marvin J. Diamond

Hogan & Hartson

(a partnership including

professional corporations)

555 13th Street N.W.

Washington, D.C. 20004

(202) 637-8652

Counsel for Petitioner

*Counsel of Record

QUESTIONS PRESENTED

1. Did the court below err in holding that Section 315

of the Communications Act does not, by its plain language,

exempt from equal opportunity requirements appearances by

newscaster candidates on bona fide newscasts contrary to the

holding of the Fifth Circuit in Brigham v. FCC, 276 F.2d 828

(Sth Cir. 1960)?

2. Is Section 315 of the Communications Act

constitutional despite recent findings of the Federal

Communications Commission in Syracuse Peace Council, 2

FCC Rcd 5043 (1987) and General Fairness Doctrine

Obligations of Broadcast Licensees, 102 F.C.C.2d 143 (1985)

that broadcast frequencies are abundant and content controls

chill speech?

(i)

PARTIES TO THE PROCEEDINGS

Petitioner William H. Branch ("Branch") is a newscaster

for television station KOVR in Sacramento, California.

Respondents below are the Federal Communications

Commission (“Commission”) and the United States of

America. The American Legal Foundation, Media Access

Project, Telecommunications Research and Action Center,

Media Access Project and Consumer Federation of America

participated as Intervenors.

TABLE OF CONTENTS

CPLR ROAMEN W ORMEIIET EEIED soca sccvccssccccecsecccccsccssccs. i

PARTIES TO THE PROCEEDING. .................c0ceees ii

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tie anidncewetahtibesess<sssosescescesse- 2

PERTINENT CONSTITUTIONAL

AND STATUTORY PROVISIONS................02sceee0 2

yy yg ee a 3

REASONS FOR GRANTING THE WRIT................. 7

I. The Court Below Erred In Rejecting The Plain

Meaning Of Section 315 Contrary To The

Decision of The Fifth Circuit In

ak nbt tnd sbadeteseeceevessecsercnes 7

II. The Decision Below Conflicts With Findings

of theFederal Communications Commission

Which Undermine the Constitutional Standard

CGOVETMENE SECTION SIS. 0. .......cccccccccseess 13

ak Gio AuGias coc nae uadacactsesceesecceses 20

APPENDICES

Appendix A: Opinion of the Court of Appeals ...... la

Appendix B: Entry of Judgment ...................... 32a

Appendix C: Order of the Federal Communications

Commission on Reconsideration ..... 33a

Appendix D: Initial Decision of the Federal

Communications Commission ........ 35a

(iii)

TABLE OF AUTHORITIES

Cases Page

Brigham v. FCC, 276 F.2d 828 (Sth Cir. 1960)

DOP: GUE IE ssi ccsnesnivinianiibsddiebeissdsntbinissesinens 7. ee ae

Brown v. Hartlage, 456 U.S. 45 (1982)..............ccseeeeee 18

CBS, Inc. v. Democratic Nat’! Comm., 412 U.S. 94

CRUE diicdasichatencndateiiskackatiatandundibanaadicciidkaaivend 14, 15

Chevron U.SA., Inc. v. NRDC, 467 U.S. 837

GS a ae eS OF ES A ee 7

Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. denied,

SD Fon, Te ee i itncacecdicntcencsetcsconcnstibatenns 8, 12

Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,

BR SRE Snel Te 10

FCC v. League of Women Voters of California,

ie, ee er tics inccncncinccsticcees 15

Federal Election Comm’ n v. Massachusetts Citizens for

Fe Se fe eS GUC 19

INS v. Cardoza Fonseca, 107 S. Ct. 1207 (1987) ............... 10

Kennedy for President Committee v. FCC, 636 F.2d 417 (D.C.

ts ae, «RRA RRNG UUM es os. e Cetenc WPT Cool pe 12

League of Women Voter's Education Fund v. FCC, -

piige |. Mf ls Re | i an 12

Loveday v. FCC, 707 F.2d 1443 (D.C. Cir. 1983)

cert. denied, 464 U.S. 1008 (1984)... 10, 13

Magil v. Lynch, 560 F.2d 22 (1st Cir. 1977),

COrt. GOma, SI4 Uw. TS CET en cccscnceccccncccccccssaes 19

MeDanial 0. Paty, 413 UB. GiB CPF e ocsccceccccnccsnscccceceeee. 19

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987)........ 13

North Dakota v. United States, 460 U.S. 300 (1983)............. 10

Oestereich v. Selective Serv. Bd., 393 U.S. 233 (1968)........... 5

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)..passim

Schwegmann Bros. v. Calvert Distillers Corp..,

SE A, SE ck i ncincnenmennsntinntiehincee 10

Telecommunications Research & Action Center v. FCC, 801

F.2d 501 (D.C. Cir.), reh’g denied, 806 F.2d 1115 (1986),

cert. denied, 107 S. Ct. 3196 (1987) ................. 11, 13, 16

United States Civil Serv. Comm’ n. v. National Ass’ n.

of Letter Carriers, 413 U.S. 548 (1973)...............ccceceees 19

TABLE OF AUTHORITIES—CONTINUED

Regulations and Administrative Decisions

a ee Bl | error 14

eS Ae Re) error enren 14

i Ree RY | | yee neerETe 14

Aspen Institute Program on Communications & Society,

55 F.C.C.2d 697 (1975), aff d sub nom. Chisholm v. FCC,

538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890

(Fascias cw th cdicedabtienle ape hd Marnie cdsebantscscecsenapecccs 9

General Fairness Doctrine Obligations of Broadcast Licensees,

REE red WE Rcictinliathactiacssscanciasaccrncnsséons - Te Y

Henry Geller, 95 F.C.C.2d 1236 (1983)...........cccsccceeeees 8, 12

In re CBS, Inc., 26 F.C.C. 715 (1959) (Lar Daly)............. 7-12

In re KWTX, 40 F.C.C. 304, affd sub nom. Brigham v. FCC,_

rg Go gi ky Reena eee 8

In re William H. Branch, 101 F.C.C.2d 901 (1985)............... 5

Law of Political Broadcasting and Cablecasting, 100 F.C.C.2d

Re iid ciate ee hands ndginndeddedncee 4

Syracuse Peace Council, 2 FCC Red 5043 (1987), appeal

pending sub nom. Syracuse Peace Council v. FCC, No.

87-1516 (D.C. Cir., filed September 24, 1987) and Geller v.

FCC, No. 87-1544 (D.C. Cir., filed October 5,

SIE Ps tcnicnnntaniniiadsdabtesiassenksbedsLabhancksnaksccacians passim

Use of Broadcast Facilities by Candidates for Public Office,

oe Be ne ee 12

Use of Broadcast Facilities by Candidates for Public Office,

Ae Ws BUN: TORE CRUD i ccitinrcsnijntritnccessnnsttiatiiegibecn 12

Use of Station by Newscaster Candidate, 40 F.C.C. 433 (1965).8

Miscellaneous

Conf. Rep. No. 1069, 86th Cong., Ist Sess., reprinted in 1959

U.S. CODE CONG. & ADMIN. NEWS 2582.................06+ 11

Federal Communications Comm’n, Legislative Proposal, 926

(Jan. 30,

WOE savkdduciasadsaccasentenecess mbatddsduadaees naeaeaeaeaaan 18

TABLE OF AUTHORITIES—CONTINUTED

Presentation and Statement of Diane S. Killory,

General Counsel, Federal Communications Commission, —

Meeting, August 4, 1987............ccccccseeccesceeseeeeeeeeeees

S. Rep. No. 562, 86th Cong.. Ist Sess. (1959),

ee in 1959 U.S. CODE CONG. & ADMIN. NEWS

STi cia pistnnndvnececdabuadensdabowbaddsiuecectncerececencnsesece 11

een II Tn... cecansveuslonccteausnsl 10, 13-19

BE Baie RIE Cp pecitarcccccccncccssnstesendincadnennes passim

IN THE

Sipreme Court of the United States

OCTOBER TERM, 1987

No.

WILLIAM H. BRANCH,

Petitioner,

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

THE UNITED STATES OF AMERICA,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner William H. Branch respectfully prays that a

writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the District of Columbia

Circuit, entered in the above-entitled proceeding on July 21,

1987.

OPINIONS BELOW

The opinion of the Court of Appeals for the District of

Columbia Circuit is reported at 824 F.2d 37 and is reprinted in

the appendix hereto (“App.”) at la.

The opinion of the Federal Communication Commission

(“Commission”) on reconsideration is unreported and is

reprinted at App. 33a. The Commission’s initial decision is

reported at 101 F.C.C.2d 901 (1985) and is reprinted at App.

36a.

JURISDICTION

Petitioner sought a declaratory ruling from the Federal

Communications Commission that the Commission may not

censees impair participation in politi

enforcing Section 315 of the Communications Act of 1934 and

that newscaster candidates are exempt from equal opportunities

requirements of Section 315 pursuant to 1959 amendments to

the Communications Act. The Commission denied that petition

and a petition for reconsideration.

The Court of Appeals affirmed on July 21, 1987. The

jurisdiction of this Court to review the judgment of the District

of Columbia Circuit is invoked under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL

AND STATUTORY PROVISIONS

The First Amendment to the United States Constitution

provides, in pertinent part, that “Congress shall make no

law...abridging freedom of speech, or of the press...”

Section 315(a) of the Communications Act of 1934, as

amended, 47 U.S.C. § 315(a) (1982), provides in pertinent

part:

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 candidates for the office in

the use of such broadcasting -station....

Appearance by a legally qualified candidate on

any—

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of

the candidate is incidental to the presentation of the

subject or subjects covered by the news documentary),

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

(including but not limited to political conventions and

activities incidental thereto),

shall not be deemed to be use of a broadcasting station

within the meaning of this subsection. Nothing in the

_ foregoing sentence shall be construed as relieving

broadcasters, in connection with the presentation of

newscasts, news interviews, news documentaries, and

on-the-spot coverage of news events, from the

obligation imposed upon them under this chapter to

operate in the public interest and to afford reasonable

opportunity for the discussion of conflicting views on

issues of public importance.

STATEMENT OF THE CASE

In 1969, this Court accorded broadcasters diminished

first amendment status based on two factual assumptions:

broadcast frequencies were less available than traditional media

and FCC regulations had not been shown to inhibit speech.

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

But the Court pledged to reconsider its holding if either

conclusion was undermined in an appropriate case. /d. at 393.

This is such a case.

William Branch is general assignment reporter at

television station KOVR in Sacramento, California. His duties

typically involve on—air appearances of approximately three

minutes per day, covering stories selected by the station’s

assignment editor. Branch does not choose the subjects on

which he reports or the amount of time allotted to each

appearance. KOVR’s assignment editor and newscast producer

make these decisions.

Branch lives in Lromis, California, a rural community of

approximately 4,000 people, thirty miles from Sacramento. He

became involved in a drive to incorporate the community in

1982 after helping form a homeowner’s association. This

effort gained momentum, and the November 6, 1984 local

elections included a referendum on the question of

incorporation and a slate of candidates for the first Loomis

town council.!_ Branch’s neighbors urged him to run for one

of the five non-salaried town council positions, and he decided

to do so.

Section 315 of the Communications Act requires

broadcasters to provide equal opportunities to candidates for

public office whose opponents are allowed to “use” station

facilities for on—air appearances. 47 U.S.C. § 315(a) (1982).2

In 1959, Congress amended section 315 to exempt from equal

opportunities requirements all candidate appearances on four

categories of bona fide news programs: newscasts, news

interviews, news documentaries and on-the-spot coverage of

news events.

Branch was aware that if he became a candidate, his

newscast appearances might trigger “equal opportunities”

obligations under the Communications Act. He informed

station management of his desire to run for office and asked

their advice. KOVR news editors reluctantly told Branch that

he must take an unpaid leave of absence during the campaign

with no guarantee of resuming his duties after the election,

1 Petitioner informed station management of his civic involvement and

voluntarily withdrew from covering stories relating to any aspect of the

Loomis incorporation drive. This self-imposed moratorium remains in

effect.

2Equal opportunities must be provided on the same basis as the initial

use. If the first candidate purchased time, his opponents must be offered

the same rate and time. If the first candidate was given airtime, his

opponents must be offered free appearances as well. See Law of Political

Broadcasting and Cablecasting, 100 F.C.C.2d 1476, 1507 (1984).

because of the significant amount of time the station would be

required to donate to other candidates under section 315.3

Branch filed a request for declaratory ruling with the

_ Commission, but was forced to drop out of the town council

race because he could not get a ruling before the 1984 election.

He nevertheless sought a declaration of his rights under section

315 and the First Amendment to the United States Constitution

so that he may run for office in the future.

~ The Commission denied Branch’s petition. It refused to

consider the constitutionality of section 315 on the basis that

“such constitutional decisions have ‘generally been thought

beyond the jurisdiction of administrative agencies.’” Jn re

William H. Branch, 101 F.C.C.2d 901, 904 n.4 (1985)

(quoting Oestereich v. Selective Serv. Bd., 393 U.S. 233, 242

(1968) (Harlan, J., concurring)). App. 40a.4 The

Commission also held that section 315 as applied does not

discriminate against Branch because all candidates for public

3KOVR would have been obligated to provide Branch’s opponents an

estimated 33 hours of free response time—the equivalent of one and

one-half broadcast days—if Branch had stayed in the town council race.

4Less than three weeks after this decision, the Commission released

its General Fairness Doctrine Obligations of Broadcast Licensees, 102

F.C.C.2d 143 (1985) (“Fairness Doctrine Inquiry”) in which it concluded

that it is obligated to review constitutional issues affecting its mandate.

The Commission stated that, as the expert agency charged with

administering the Communications Act, it should be involved in such

matters because: (1) constitutional considerations are an integral

component of the public interest standard; (2) the Commission’s

day-to—day experience in implementing broadcast regulations provides a

unique perspective; and (3) the Supreme Court has relied on FCC

representations in determining the constitutional validity of broadcasting

regulations. Jd. at 155-56. In August, 1987, the Commission relied on

these findings to rule that the fairness doctrine violates broadcasters’ first

amendment rights. Syracuse Peace Council, 2 FCC Rcd 5043 (1987),

appeal pending sub nom. Syracuse Peace Council v. FCC, No. 87-1516

(D.C. Cir., filed September 24, 1987) and Geller v. FCC, No. 87-1544

(D.C. Cir., filed October 5, 1987).

office are treated in the same manner. /d. Finally, the

Commission rejected Branch’s argument that the plain meaning

of section 315 exempts appearances by newscaster candidates

on bona fide newscasts. Jd. at 42a. The Commission

subsequently denied reconsideration. /d. at 33a.

The Court of Appeals affirmed, holding that Red Lion

precludes Branch’s first amendment challenge to section 315.

Id. at 25a. The court noted:

The Supreme Court recently reaffirmed Red Lion

and disavowed any intention “to reconsider our

longstanding approach without some signal from

Congress or the FCC that technological

developments have advanced so far that some

revision of the system of broadcast regulation may

be required.” FCC v. League of Women Voters of

Cal., 468 U.S. 364, 376 n.11 (1984). The

Commission may now have sent just such a signal

by issuing a report which concludes that section 315

is unconstitutional and should be abandoned. See

General Fairness Doctrine Obligations of Broadcast

Licensees, 102 F.C.C.2d 143 (1985). But unless

the Court itself were to overrule Red Lion, we

remain bound by it. [App. 25a—26a (footnote

omitted).]

The court also rejected Branch’s claim that section 315 is

unconstitutional as applied because it imposes an undue burden

on his right to run for public office. It acknowleged that

Branch was forced to choose between his job and his

candidacy, but concluded “nobody has ever thought that a

candidate has a right to run for office and at the same time avoid

all personal sacrifice.” Jd. at 22a— 23a.

Finally, the court upheld the Commission’s interpretation —

of section 315 exemptions to exclude newcaster candidates. In

reaching this result, the court avoided the “apparent simplicity”

of a literal reading of the statutory language and conducted its

own survey of the legislative history. /d. at 8a, 9a—18a. It

concluded that Congress amended section 315 to reverse a

specific FCC decision and that the news exemptions apply only

when a candidate is “presented to the public as news.” /d. at

15a.5

Neither the court nor the Commission suggested that

Branch’s newscast appearances resulted from political

favoritism by KOVR or were presented for any reason other

than a bona fide purpose to deliver the news.

REASONS FOR GRANTING THE WRIT

I. The Court Below Erred In Rejecting The Plain

Meaning Of Section 315 Contrary To The

Decision of The Fifth Circuit In Brigham v.

FCC

The court below held that section 315 requires broadcast

Stations to provide equal opportunities in response to

appearances by newscaster candidates despite the plain

Statutory language creating an exemption from such

requirements for an “[a]ppearance by a legally qualified

candidate on any...bona fide newscast.” App. 7a—20a. This

holding conflicts directly with the Fifth Circuit decision in

Brigham v. FCC, 276 F.2d 828 (Sth Cir. 1960) (per curiam)

which held that appearances by a newscaster candidate are

exempt under section 315. This Court should grant the writ to

resolve this conflict over the extent to which courts are free to

embellish statutory language with their own readings of

legislative history.

The court below looked beyond the language of section

315 to find the purpose for which 1959 amendments to the

section were adopted. It concluded that the amendments,

SIna concurring opinion, Judge Starr found that Branch’s reading of

section 315 is “a more natural statutory interpretation” than the one offered

by the FCC, but concluded that the Court must defer to the Commission’s

interpretation under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837

(1984). App. at 30a—31a.

which exempted candidates’ newscast appearances, were

adopted solely to overrule the Commission’s decision in the Lar

Daly case.© The court quoted liberally from floor debates and

held that Congress intended merely to restore the law to to its

pre—Lar Daly state. App. 12a—13a. Although it acknowledged

that the 1959 amendments were broader than the factual

parameters of Lar Daly, the court below concluded that the

news exemptions apply to candidate appearances only when

they are part of a news event being covered. Jd. at 14a—16a.’

The court noted that the Commission initially exempted

appearances by newscaster candidates after the amendments

were adopted, but that, upon a more comprehensive analysis of

the legislative history, the FCC “has faithfully adhered to its

current position for more than twenty years.”8

6In Lar Daly, the Commission held that broadcast licensees were

obligated to provide equal opportunities for broadcast time in response to

candidate appearances on newscasts. In re CBS, Inc., 26 F.C.C. 715

(1959).

Tin his concurring opinion, Judge Starr disagreed that Congress

“hecessarily intended the amendments to extend only to coverage of the

candidate that is presented to the public as news. /d. at 30a. He concluded,

however, that congressional intent-was ambiguous and that the court must

defer to the Commission’s interpretation of its governing statute. /d. at

3la.

8 App. 20a. The Commission initially held that section 315

obligations do not apply to on-air appearances of a weatherman who was a

candidate. Jn re KWTX, 40 F.C.C. 304, aff'd sub nom. Brigham v. FCC,

276 F.2d 828 (Sth Cir. 1960). It subsequently reversed its position in Use

of Station by Newscaster Candidate, 40 F.C.C. 433 (1965). But the

Commission’s consistency since 1965 may largely be explained by the fact

that the question of newscaster candidates had not again been raised until

Branch filed his petition in 1984. Other questions involving section 315

were raised during this period and the Commission regularly adopted a

more liberal approach to the exemptions. E.g., Aspen Institute Program

on Communications & Society, 55 F.C.C.2d 697 (1975), aff'd sub nom.

Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890

(1976); Henry Geller, 95 F.C.C.2d 1236 (1983).

By sharp contrast, the Fifth Circuit in Brigham applied

the plain language of section 315 amendments to exempt an

appearance by a weather reporter. The court stated that:

There is not the slightest hint in the undisputed facts

that this weathercaster’s appearance involved

anything but a bona fide attempt to present the

news.... [H]is employment is not something

arising out of the election campaign but, rather, is a

“regular job.” Certainly the facts do not indicate

any favoritism on the part of the station licensee or

intent to discriminate among candidates. [276 F.2d

at 830].

Hence, that court upheld the Commission’s decision to exempt

on—air appearances by a newscaster candidate.

The court below criticized the Brigham for failing to

“mention the legislative history, [and] focus[ing] instead on the

fact that no favoritism had been shown.” App. 19a. It

suggested that courts must look to such sources of intent by

concluding “[n]Jo tribunal that has considered the language of

section 315 in light of its legislative history has ever endorsed

Branch’s reading of the statute, and we also reject it.” Jd. at

20a.

This conflict underscores the need for review by this

Court. More extensive analysis of the legislative history is not

necessarily a better guide to legislative intent, as the court

below suggests. Rather, the relevant inquiry asks the extent to

which judges may consult legislative history in the face of a

clear statutory text. The answer to this question gains added

significance when background materials from the legislative

process lead to a result that conflicts with the words Congress

adopted as law or when such an interpretation creates a

potential constituional problem.? In the context of this case,

may section 315 language exempting candidate appearances on

“any bona fide newscast” be read to mean that some such

appearances are exempt, while others are not?

Well established principles governing statutory

interpretation suggest that the lower court erred by relying on

legislative history to interpret section 315 so as to limit the

scope of the words Congress adopted. Excessive use of such

history as a guide to statutory interpretation creates the danger

that courts may usurp functions which properly reside in the

legislative and executive branches. See Schwegmann Bros. v.

Calvert Distillers Corp., 341 U.S. 384, 395-96 (1951)

(Jackson, J., concurring). See also INS v. Cardoza Fonseca,

107 S. Ct. 1207, 1224 (1987) (Scalia, J., concurring). Thus,

courts apply the general rule that statutory language must

ordinarily be regarded as conclusive “[a]bsent a clearly

expressed legislative intention to the contrary.” North Dakota

v. United States, 460 U.S. 300, 312 (1983), quoting

Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980) (emphasis added). There is a “strong

presumption.that Congress expresses its intent through the

language it chooses,” and courts will examine legislative

history only to determine whether there is an evident dispute

with the plain meaning. See Cardoza Fonseca, 107 S. Ct.

1207, 1213 & n.12.

Failure to follow this basic premise often leads to

inconsistent results. In this case, Branch presumably would

have been able to run for office if he were areporter in Dallas,

Texas, within the Fifth Circuit’s jurisdiction, rather than

Sacramento. In addition to conflicts between circuits, there is

9As noted infra, section 315 limits Branch’s and KOVR’s journalistic

choices and burdens Branch’ ability to seek public office. Unless there is a

“clear[] congressional directive,” a court should avoid construing a statute

in ways that create arguable first amendment problems. Loveday v. FCC,

707 F.2d 1443, 1459 (D.C. Cir. 1983), cert. denied, 464 U.S. 1008

(1984).

also the risk of piecemeal interpretations can lead to disparate

rulings even within the same circuit.

The court’s narrow view of section 315 amendments in

this case resulted from its focusing more on legislators’

statements about the Lar Daly decision than the language

Congress ultimately adopted. Although Lar Daly clearly was

the catalyst for the legislation, making numerous debate

references understandable, it did not circumscribe the

amendments. The bill introduced in the House of

Representatives dealt almost exclusively with reversing Lar

Daly.10 But Congress passed the Senate bill instead, which

contained language preserving the Commission’s fairness

doctrine.!1 This provision was added in recognition that the

1959 amendments increased broadcasters’ news discretion

generally, see, e.g., Telecommunications Research & Action

Center v. FCC, 801 F.2d 501, 517 (D.C. Cir.), reh’g denied,

806 F.2d 1115 (1986), cert. denied, 107 S. Ct. 3196 (1987)

(“TRAC”), and would have been surplusage if Congress was

merely repealing Lar Daly. Its addition is plainly inconsistent

with the view that Congress. amended section 315 for the

purpose suggested by the court below.

10See generally H.R. Rep. No. 802, 86th Cong., Ist Sess. (1959).

11See §. Rep. No. 562, 86th Cong., Ist Sess. (1959), reprinted in

1959 U.S. CODE CONG. & ADMIN. NEWS 2564; Conf. Rep. No. 1069,

86th Cong., Ist Sess., reprinted in 1959 U.S. CODE CONG. & ADMIN.

NEWS 2582. The Senate bill led to the addition of the following language:

Nothing in the foregoing sentence shall be construed as

relieving broadcasters, in connection with the presentation of

newscasts, news interviews, news documentaries, and

on-the-spot coverage of news events, from the obligation

imposed upon them under this chapter to operate in the

public interest and to afford reasonable opportunity for the

discussion of conflicting views on issues of public

importance.

Similarly, the fact that the Commission did not exempt

appearances by newscaster candidates before the 1959 changes

‘does not control how the amendments should now be

interpreted.12 The Commission did not exempt candidate

debates before the Lar Daly decision,!3 yet the D.C. Circuit

has held that Congress created such an exemption when it

amended section 315. Chisholm v. FCC, 538 F.2d 349 (D.C.

Cir.), cert. denied, 429 U.S. 890 (1976). The FCC’s treatment

of debates before Lar Daly is flatly inconsistent with the_

court’s conclusion that Congress intended only to exempt

candidate appearances that are part of a news story. App.

15a—16a. The legislators’ statements cited by the court suggest

that Congress intended to exempt coverage of news events,

there is no clear indication that it did not also extend the

exemption to cover an editor’s choice of reporters (including a

reporter who may happen to be a candidate). By contrast,

Congress expressly considered and rejected a proposal that the

exempt program categories include “debates.”!14 Nevertheless,

both the Commission and the courts recognized that such

programs are covered by the statutory language. /d. at 359.

Other D.C. Circuit decisions support the position that the

amendments were broadly remedial and were designed to

increase broadcaster discretion while retaining restrictions on

favoritism. League of Women Voter’s Education Fund v.

FCC, 731 F.2d 995 (D.C. Cir. 1984), affing Henry Geller,

95 F.C.C.2d 1236, 1244 (1983) (“the common denominator of

all exempt programming is bona fide news value”); Kennedy

for President Committee v. FCC, 636 F.2d 417, 425, 427

12App. 9a. The court cited Use of Broadcast Facilities by Candidates

for Public Office, 23 Fed. Reg. 7817, 7817-18 (1958) (codifying the

Commission’s determinations of what constitutes a “use”).

13Se¢ id.; Use of Broadcast Facilities by Candidates for Public Office,

19 Fed. Reg. 5948 (1954) (citing cases).

14 See S. Rep. No. 562, supra note 11 (Additional views of Sen.

Hartke).

(D.C. Cir. 1980). It is easier to reconcile the weight of

authority in the D.C. Circuit with Brigham than it is the lower

court’s decision here. This Court should grant the writ to

resolve the conflict created by the court below.

II. The Decision Below Conflicts With Findings of

- the Federal Communications Commission

Which Undermine the Constitutional Standard

Governing Section 315

Broadcasters receive a lower level of protection under the

first amendment than do “traditional” speakers, even though the

factual assumptions underlying this treatment are no longer

supportable. Despite its extensive findings in other

proceedings that broadcast content controls chill speech and that

broadcast frequencies are abundant, the Federal

Communications Commission has concluded it is powerless to

recognize full first amendment rights for broadcasters in the

face of section 315. The Court of Appeals similarly has

questioned the theoretical justifications for broadcasters’ second

class status,!5 but has held that it is bound by Red Lion until

this Court overrules it. App. 25a—26a. In the meantime,

William Branch, KOVR and all other broadcasters must endure

editorial intrusions by the government that would never be

tolerated if they wrote their words on paper instead of

transmitting them over the air. This Court should grant the writ

to finally resolve this vital issue.

In Red Lion, this Court for the first time addressed the

constitutional validity of the fairness doctrine, which, like

section 315, compelled broadcasters to provide response time

15See, e.g., TRAC, 801 F.2d at 506-09; Meredith Corp. v. FCC,

809 F.2d 863, 866-67 (D.C. Cir. 1987); Loveday v. FCC, 707 F.2d at

1459.

in certain situations.!© It upheld these content controls “in

view of the scarcity of broadcast frequencies,” 395 U.S. at

400, and dismissed as “speculative” concerns that broadcasters

would engage in self-censorship to avoid regulatory

entanglements. Jd. at 393. But the Court stressed that the

potential for chilling speech was “a serious matter,” and made

clear that “if experience with the administration of these

doctrines indicates that they have the net effect of reducing

rather than enhancing the volume and quality of coverage, there

will be time enough to reconsider the constitutional

implications.” Jd.

This Court has recognized consistently that its

conclusions regarding the constitutional validity of broadcast

content controls are not immutable. The first amendment

balance could shift “because the broadcast industry is dynamic

in terms of technological change; solutions adequate a decade

ago are not necessarily so now, and those acceptable today may

well be outmoded 10 years hence.” CBS, Inc. v. Democratic

Nat’! Comm., 412 U.S. 94, 102 (1973). |

The Federal Communications Commission plays an

essential role in this on—going process. As the expert agency

established by Congress to regulate broadcasting, it “possesses

more than fifty years of experience with the day-to—day

implementation of regulation.” Syracuse Peace Council, 2 FCC

Rcd at 5046. Thus, the Court has noted that the public interest

standard of the Communications Act “necessarily invites

reference to First Amendment principles,” and that “the

161n general, the faimess doctrine required broadcasters to air balanced

presentations of “controversial issues of public importance.” Under this

policy a licensee could be ordered to supplement its programming if the

Commission found a presentation to be one-sided. 47 C.F.R. § 73.1910

(1986). Two corollaries—the personal attack and political editorial

rules—required station licensees to notify the subject of an attack or the

opponent of a candidate endorsed in a broadcast and offer appropriate

response time. /d. §§ 73.1920, 73.1930. Since August, 1987, the

Commission no longer enforces the fairness doctrine because of its finding

that the rule violates broadcasters’ first amendment rights. Syracuse Peace

Council, 2 FCC Red 5043.

[balancing] process must necessarily be undertaken within the

framework of the regulatory scheme.” CBS, Jnc., 412 U.S. at

102, 122.

The Commission’s regulatory mandate requires it to

assess the nature of broadcasting and related industries as well

as the impact of its rulings on licensees. Both inquiries have

constitutional significance. This Court has noted that if the

Commission demonstrated that the fairness doctrine “‘[has] the

net effect of reducing rather than enhancing’ speech, we would

then be forced to reconsider the constitutional basis of our

decision in [Red Lion].” FCC v. League of Women Voters of

California, 468 U.S. 364, 379 n.12 (1984). Likewise, the

Court has indicated that it may be willing to reassess its

traditional reliance on spectrum scarcity upon some “signal”

from Congress or the Commission “that technological

developments have advanced so far that some revision of the

system of broadcast regulation may be required.” Jd. at 376-77

n.11l.

The “signal” described by the Court was sent this past

August. The Commission concluded in Syracuse Peace

Council that “the factual predicates underlying [Red Lion] had

eroded,” and held that it no longer could enforce the fairness

doctrine. 2 FCC Rcd at 5043-44. In presenting the matter for

the Commissioners’ consideration, the FCC’s General Counsel

referred to the League of Women Voters’ suggestion that Red

Lion might be reconsidered and proclaimed, “We agree that it is

time to revisit and revise [the first amendment standard for

broadcasting]; and [we] urge[] the Supreme Court to do so.””!7

The Commission concluded after a comprehensive

inquiry that “the Supreme Court’s apparent concern that

listeners and viewers have access to diverse sources of

information has now been allayed.” Syracuse Peace Council, 2

FCC Red at 5053. It found that the number and capabilities of

media outlets have been vastly expanded since the Supreme

17 Presentation and Statement of Diane S. Killory, General Counsel,

Federal Communications Commission, Open Meeting, August 4, 1987.

Court decided Red Lion. Forexample, the Commission noted

that there were 1,315 television stations in the United Stated in

August 1987—up 57 percent from 1969. The number of radio

Stations increased during the same period by 54 percent, to a

total of 10,128. Jd. at 5053.18 The Commission also found

that cable television increased exponentially in the years

following Red Lion and that new electronic technologies, such

as low power television, multi-channel multipoint distribution

service (“MMDS”), video cassette recorders (“VCRs”), and

satellite master antenna television (“SMATV”), all unavailable

in 1969, are “contributing 7 i to the diversity of

information available to the " Id. In light of these facts,

the Commission urged this = reconsider its application

of diminished First Amendment protection to the electronic

media.” Jd. at 505829

The Commission concluded independently that content

controls chill the free exercise of broadcast speech. In 1969,

the Court treated “speculation” regarding a chilling effect as “a

serious matter,” but upheld the fairness doctrine until

experience with its administration demonstrates that it has the

net effect of dampening speech. Red Lion, 395 U.S. at 393.

18putting these figures into perspective, the Commission found that

96 percent of television households receive five or more signals. 2 FCC

Rcd at 5053. At the same time, there are 1,657 daily newspapers in the

United States, and only 125 cities have two or more local newspapers.

at 5054.

19The Commission also concluded that the scarcity rationale, which

courts historically used to justify a lower level of first amendment

protection for broadcasters, was based on a distinction insufficient to

support a constitutional difference. Although it conceded that broadcast

frequencies are scarce in the economic sense, the Commission pointed out

that the same is true of “‘newsprint, ink, delivery trucks, computers, and

other resources that go into the production and dissemination of print

journalism.’” Syracuse Peace Council, 2 FCC Red at 5054, quoting

TRAC, 801 F.2d at 508. It therefore concluded that “in analyzing the

appropriate First Amendment standard to be applied to the electronic press,

the concept of scarcity—be it spectrum or numerical—is irrelevant.” /d. at

5054.

That oppressive experience now has been chronicled in the

Commission’s 1985 Fairness Doctrine Inquiry and Syracuse

Peace Council.. Upon completing a thorough review of the

doctrine’s impact,2° the Commission found that “the

record...overwhelmingly demonstrated that broadcasters. ..limit

the amount of controversial issue programming presented on

the airwaves” because of the fairness doctrine. Syracuse Peace

Council, 2 FCC Red at 5050. Consequently, it concluded that

“the fairness doctrine, on its face, violates the First Amendment

and contravenes the public interest.” Jd. at 5043.

The same conclusions regarding the chilling effect of

content controls apply to section 315. This Court has made

clear that:

[iJn terms of constitutional principle...the personal

attack and political editorial rules are

indistinguishable from the equal-time provision of §

315, a specific enactment of Congress requiring

Stations to set aside reply time under specified

circumstances and to which the fairness doctrine

and these constituent regulations are important

complements. [Red Lion, 395 U.S. at 391.]

20No emprical assessment of the fairness doctrine’s effect on broadcast

speech had ever been conducted before the Fairness Doctrine Inquiry. 102

F.C.C.2d at 158. Accordingly, the Commission embarked on a “searching

and comprehensive reexamination of the fairness doctrine.” /d., quoting

Notice of Inquiry in Gen. Docket No. 84-282, 49 Fed. Reg. 20317, 20318

(May 14, 1984). More than one hundred parties submitted formal written

comments in the proceeding, while many others provided informal

comments and/or oral testimony. See 102 F.C.C.2d at 146. The

Commission received additional comments regarding the fairness doctrine’s

constitutionality on remand in Syracuse Peace Council. The FCC received

comments from approximately fifty individuals, broadcasters, advertisers,

public interest groups, trade associations, governmental entities and others.

2 FCC Red at 5045.

Accordingly, the 1985 Fairness Doctrine Inquiry documented

numerous cases in which the fairness doctrine stifled the

presentation of political advertisements.2!

Consistent with these findings, the Commission in 1986

recommended that Congress repeal section 315. It pointed out

that “section 315 imposes a hierarchy of speech values which

unnecessarily and improperly restricts the discretion of

broadcasters in fulfilling their public interest obligations and

journalistic responsibilities.” Federal Communications

Comm’n, Legislative Proposal, 926 (Jan. 30, 1986). Because

section 315 “forces broadcasters to commit substantial time

blocks, particularly in multi-candidate races...the practical

result of this policy has been that broadcasters often exercise

the discretion not to give or sell any time to candidates in some

races.” /d. (emphasis in original). Therefore, the Commission

concluded:

Repeal of Section 315...would permit the vest

majority of broadcasters who are anxious to serve

their communities to present the significant

candidates for public office, at every level, in

meaningful discussions...without the need to resort

to the artifice of “exempt news programs.” [/d.]

Section 315 undeniably restricts the first amendment

rights of Branch and KOVR. Branch’s career as a newscaster

was threatened as a direct result of the “equal opportunities”

requirements and KOVR was forced to limit its editorial choices

because of 315. Neither the court below nor the Commission

questioned these facts. Rather, they dutifully upheld the

restrictions under the Red Lion standard, while simultaneously

noting the erosion of the factual predicates for that standard.

21102 F.C.C.2d at 174-79. Although the Commission’s findings in

this proceeding related to advertisements promoting political issues, the

incentives affecting candidate appearances under section 315 are the same.

;

hae

Ss OSG AS la ME RET GRA SRR ENS a Pett he Baio oc TE

Only this Court can reconcile the law with the current media

environment.22

22Section 315 also violates Branch’s first amendment rights by

conditioning his right to run for elective office on his willingness to

sacrifice his career as a broadcast journalist. This Court has firmly rejected

government attempts to impose conditions on the exercise of

constitutional rights. Specifically, in McDaniel! v. Paty, 413 U.S. 618

(1978), it struck down a state law that would have forced a clergyman to

resign his church position in order to run for state office.

Restrictions on candidate speech will be upheld only if narrowly

drawn to serve a compelling state interest. Brown v. Hartlage, 456 US.

45, 54-55 (1982). In this connection, this Court will be no more tolerant

of indirect abridgements of campaign speech than it is overt censorship.

The fact that the statute’s practical effect may be to discourage protected

speech is sufficient to characterize it as an infringement on First

Amendment activities. Federal Election Comm'n v. Massachusetts

Citizens for Life, Inc., 107 S. Ct. 616 (1986).

These bedrock principles preclude applying section 315 so as to

deny Branch’s right to run for office. Although the court below opined

that “nobody has ever thought that a candidate has a right to run for office

and at the same time avoid all personal sacrifice,” App. 22a-23a, the body

of first amendment law denies to government the ability to impose that

sacrifice absent a compelling justification. Here, no such justification has

ever been suggested.

Even if the Red Lion standard supporting broadcast regulations is

upheld, the government’s burden will not have been met. Red Lion is not

predicated on a compelling state interest. Nor does the lower court’s

citation of Hatch Act cases fulfill the necessary burden. While this Court

has recognized a compelling interest in precluding political participation by

federal officeholders in order to prevent corruption, see, e.g., United States

Civil Serv. Comm'n. v. National Ass'n. of Letter Carriers, 413 U.S. 548

(1973), such conclusions are not generalizable. See Magil v. Lynch, 560

F.2d 22, 27 (1st Cir. 1977), cert. denied, 434 U.S. 1063 (1978) (The

“government’s interest in regulating both the conduct and speech of its

employees differs significantly from its interest in regulating those of the

citizenry in general.”).

CONCLUSION

For the foregoing reasons, this Court should grant the

writ and reverse the decision of the court below.

Respectfully submitted,

555 13th Street, N.W,

Washington, D.C. 20004

(202) 637-8652

Counsel for Petitioner

*Counsel of Record

APPENDICES

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 86-1256

WILLIAM H. BRANCH, PETITIONER

FEDERAL COMMUNICATIONS COMMISSION AND THE

UNITED STATES OF AMERICA, RESPONDENTS

AMERICAN LEGAL FOUNDATION,

CONSUMER FEDERATION OF AMERICA, et al., INTERVENORS

Petition for Review of an Order of the

Federal Communications Commission

Argued December 10, 1986

Decided July 21, 1987

Robert L. Corn, with whom Marvin. J. Diamond was

on the brief for petitioner.

C. Grey Pash, Jr., Counsel, Federal Communications

Commission, with whom Jack D. Smith, General Counsel,

Bills of costs must be filed within 14 days after entry of judgment. The

court looks with disfavor upon motions to file bills of costs out of time.

Daniel M. Armstrong, Associate General Counsel, Fed-

eral Communications Commission, and John J. Powers,

III, Attorney, Department of Justice, were on the brief

for respondents. George Edelstein, Attorney, Department

of Justice, entered an appearance for respondent.

David W. Danner, with whom Andrew Jay Schwartz-

man was on the brief for intervenor, Consumer Federa-

tion of America, et al. Robert M. Gurss entered an ap-

pearance for intervenor.

Michael P. McDonald was on the brief for intervenor,

American Legal Foundation.

David M. Hunsaker was on the brief for amicus curiae,

The Freedom of Expression Foundation, urging the Court

to find section 315 as unconstitutional.

Jane E. Kirtley and Elaine P. English were on the

brief for amicus curiae, The Reporters Committee for

Freedom of the Press, urging the reversal of the Federal

Communications Commission’s decision in this case.

Before: BorRK and STARR, Circuit Judges, and Mc-

GOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Bork.

Concurring opinion filed by Circuit Judge STARR.

Bork, Circuit Judge: A television news reporter who

wishes to run for public office challenges the Federal

Communications Commission’s decision that the station

which employs him would be required to provide “equal

time” to his political opponents. This decision would

require the station to offer his opponents opportunities

to appear on the station that are equivalent to the news-

caster’s regular daily appearances. The Commission’s

determination rested on a federal statute. The reporter

challenges both the interpretation of the statute and its

constitutionality. We deny the petition for review.

The petitioner, William Branch, is a television reporter

who covers general assignments for station KOVR in

Sacramento, California. He appears on the air in news-

casts, on average, about three minutes per day, reporting

stories assigned to him by the station. Branch lives in

nearby Loomis, California, a small community of about

4,000 people. Beginning late in 1982, he participated in

a successful effort to incorporate Loomis as a town.

In 1984 Branch decided to seek election to the new Loomis

town council.

Branch was aware that a federal statute—47 U.S.C.

§ 315(a) (1982)—imposes certain “equal time” burdens

on broadcasters. He therefore consulted with station

management for advice before commencing his campaign.

The KOVR news editors calculated that the station would

be required to provide thirty-three hours—or about one

and a half broadcast days—of response time to Branch’s

opponents if he continued to work there during his cam-

paign.' They told Branch that KOVR was unwilling to

provide that amount of time to his opponents, and that

if he wished to maintain his candidacy he must take an

unpaid leave of absence during the campaign, with no

guarantee that he would be able to resume his duties

after the election.

Branch immediately sought judicial and administrative

determination of his rights, but was unable to get a rul-

ing before the 1984 election. Put to a choice, he con-

tinued his work at KOVR and dropped out of the town

council race. Upon terminating his candidacy, however,

he filed a petition for a declaratory ruling from the Com-

mission on the effect of the “equal opportunities” re-

1 This figure, which is not in dispute, was reached by multi-

plying 11 (the number of Branch’s opponents) times 60 days

(the approximate number of days in the campaign) times

three minutes per day (the approximate number of minutes

per day that Branch is on the air).

| quirement in 47 U.S.C. § 315(a) on newscaster candi-

dates. Branch sought a ruling that would enable him

to run for the Loomis town council in a future election

without requiring his employer to offer equal time to his

opponents. He specifically asked the Commission to rule

on two issues: whethér the statute required broadcast

stations to provide equal time to the opponents of news-

caster candidates; and whether the statute was constitu-

tional as so applied.

The Commission denied the petition. After reviewing

the language and purposes of the statute, as well as its

legislative history, the Commission concluded that news-

caster candidates do not come within any special exemp-

tion from a station’s statutory obligation to provide equal

time to other candidates. Jn re William H. Branch, 101

F.C.C.2d 901, 902-04, 906 (1985). The Commission ini-

| tially refused to review its previous determinations that

section 315 is constitutional, mindful “that such consti-

tutional decisions have ‘generally been thought beyond

the jurisdiction of administrative agencies.’” Jd. at 904

n.4 (quoting Oestereich v. Selective Serv. Bd., 393 U.S.

233, 242 (1968) (Harlan, J., concurring)). The Com-

mission went on, however, to state that it would defer

to Congress’ determination “in enacting section 315 that

there is a governmental interest in assuring that licensees

afford equitable treatment to all candidates running for

a particular office, and that this interest justifies impos-

ing certain limitations on broadcast speech: . . . [that

treat] all candidates for public office . . . in the same

manner.” Jd. at 904-05. The Commission also ruled that

the statute is not unconstitutionally overbroad. Jd. at

905. Branch’s petition for reconsideration was denied by

the Commission, and he now seeks review in this court.

; Il.

The government contends that Branch lacks standing

to bring this suit in federal court. In order to establish

standing, Branch must allege “personal injury fairly

Pe es

tS ed

traceable to the defendant’s allegedly unlawful conduct

and likely to be redressed by the requested relief.” Allen

v. Wright, 468 U.S. 737, 751 (1984). The government

correctly notes that these standards remain applicable

where the relief sought is merely a declaratory ruling,

see Radiofone, Inc. v. FCC, 759 F.2d 936, 938-39 (D.C.

Cir. 1985), and that the standards are unaffected by the

fact that the petitioner was permitted to proceed before

the administrative agency, which is not subject to the

same jurisdictional limits that article III imposes on the

federal courts. See California Ass’n of the Physically

Handicapped v. FCC, 778 F.2d 823, 826 n.8 (D.C. Cir.

1985).

The crucial question is whether Branch has suffered

any actual or threatened injury. The government con-

cedes that if Branch could demonstrate that he was likely

to lose his job, even temporarily, as a result of becoming

a political candidate, he would have standing to seek

review of the Commission’s decision. Brief for Respond-

ents at 10. Such an injury would be “distinct and pal-

pable,” see Warth v. Seldin, 422 U.S. 490, 501 (1975),

and the direct threat of this injury would not vanish

merely because in the previous election Branch chose to

keep his job and forgo his candidacy. At that point, in-

deed, the alleged injury to Branch simply changed form,

possibly becoming even more severe, for “loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373-74 (1976).

Branch has adequately demonstrated that he suffered

the particular injury just described. In an affidavit at-

tached to his petition for reconsideration of the Commis-

sion’s decision, Branch affirmed that after he decided to

run for town council, he .

consulted with station management for advice. KOVR

news editors told [Branch] that he must take an

unpaid leave of absence during the campaign with

no guarantee of resuming his duties after the elec-

tion if he were to maintain his candidacy, because

of the significant amounts of time that would have

to be provided for opponents of a newscaster candi-

date under the Commission’s section 315 rulings.

[Branch] declined to run for town council because

of this response.

Petition for Reconsideration at 3-4, Joint Appendix

(“J.A.”) at 83-84; Affidavit of William H. Branch at 1

(Sept. 10, 1985), J.A. at 106. This statement was sub-

sequently confirmed in an affidavit filed with the court

by Albert Jaffee, the news director at KOVR. Affidavit

of Albert Jaffee at 1-2 (Dec. 12, 1986). These state-

ments are sufficient to establish both that Branch’s in-

jury was caused by the Commission’s view of the opera-

tion of the statute and that it is likely to be redressed

by a favorable ruling on his petition. In addition, Branch

correctly alleges that the Commission’s ruling has a con-

tinuing impact on k.s ability to run for the Loomis town

council in a future election. See Petition for a Declara-

tory Ruling Jn re William H. Branch, at 1 (Aug. 30,

1984), J.A. at 28. We therefore hold that Branch has

standing to bring this case.

One of the intervenurs recasts these objections as an

argument that the case is not ripe for decision. The

contention seems to be that Branch’s claim would become

ripe if he actually lest his job by prosecuting a campaign.

This is, of course, merely a modified version of the argu-

ment that Branch has suffered no injury. It flies in the

face of considerable precedent that a federal court may

decide not only claims involving actual present injury,

but also those involving a threat of injury which is suffi-

ciently direct and immediate to constitute more than a

string of contingencies. or speculative characterizations.

See, e.g., Ex parte Levitt, 302 U.S. 633, 634 (1937);

Steffel v. Thompson, 415 U.S. 452, 459 (1974); Laird v.

Tatum, 408 U.S. 1, 11-13 (1972). We also conclude that

this case is ripe under the test set out in Abbott Lab-

oratories, Inc. v. Gardner, 387 U.S. 136, 149 (1967),

which balances the fitness of the issues for resolution

against the hardship done to the parties if the court with-

holds consideration. This case is fit for resolution; we

do not believe the issues would be refined by any further

development of these facts. On the other hand, the hard-

ship Branch would suffer if we refused to hear his claim,

which is the injury we have just described, is obvious.’

ITI.

Branch initially contends that the statute’s “equal

time” provisions do not apply to him because the statute

exempts the television appearances of a newscaster can-

didate from their coverage. In matters of statutory con-

struction, we “employ[] traditional tools of statutory

construction,” and “[iJf the intent of Congress is clear,

that is the end of the matter.” Chevron U. S. A. Ine. Vv.

Natural Resources Defense Council, Inc., 467 U.S. 837,

843-44 & n.9 (1984). The statutory language at issue

reads in full: |

If any licensee shal] permit any person who is a

legally qualified candidate for any public office to use

a broadcasting station, he shall afford equal oppor-

tunities to all other candidates for the office in the

use of such broadcasting station: Provided, That

such licensee shall have no power of censorship over

the material broadcast under the provision of this

section. No obligation is hereby imposed under this

subsection upon any licensee to allow the use of its

station by any such candidate. Appearance by a

legally qualified candidate on any—

* We also note in passing that this case is not moot, even

though the 1984 town council election has long passed, since

Branch seeks to preserve his right to run in a future election

by preventing a recurrence of these events. Controversies

that arise in election campaigns are unquestionably among

those saved from mootness under the exception for matters

“capable of repetition, yet evading review.” See, e.g., Moore

v. Ogilvie, 394 U.S. 814, 816 (1969).

—

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the ap-

pearance of the candidate is incidental to the

presentation of the subject or subjects covered

by the news documentary), or

(4) on-the-spot coverage of bona fide news

events (including but not limited to political

conventions and activities incidental thereto),

shall not be deemed to be use of a broadcasting sta-

tion within the meaning of this subsection. Nothing

in the foregoing sentence shall be construed as re-

lieving broadcasters, in connection with the presenta-

tion of newcasts, news interviews, news documen-

taries, and on-the-spot coverage of news events, from

the obligation imposed upon them under this chap-

ter to operate in the public interest and to afford

reasonable opportunity for the discussion of conflict-

ing views on issues of public importance.

47 U.S.C. § 315(a) (1982). Branch reads the statutory

language to mean: the “equal opportunities” require-

ment applies only when there is a “use” of a broadcast-

ing station; a candidate’s appearance on a bona fide

newscast does not constitute such a “use”; thus Branch’s

appearances on KOVR’s bona fide news broadcasts are

not subject to the “equal opportunities” requirement. The

apparent simplicity of this argument, however, is mis-

_leading.

The statutory language just quoted comprises four

sentences. The first two, which contain Congress’ state-

ment of the equal opportunities rule, have been in effect

since 1927, about as long as the broadcasting industry

has existed in this country. See Radio Act of 1927,

§ 18, 44 Stat. 1162, 1170. For thirty-two years, these

sentences stood alone as Congress’ entire treatment of the

issue. During that period, the Commission interpreted

the statute to require “equal opportunities” whenever any

candidate appeared on the air, unless the candidate was

the subject of “a routine news broadcast.” In re Allen

H. Blondy, 40 F.C.C. 284, 285 (1957) ; see Use of Broad-

cast Facilities by Candidates for Public Office, 23 Fed.

Reg. 7817, 7817-18 (1958) (codifying the Commission’s

determinations of what constitutes a “use”).* The news

broadcast exception that the Commission formulated was

understood as preserving for the station “the exercise of

8 Among the Commission’s prior determinations, which it

set out in a question-and-answer format, were the following:

4. Q. If a legally qualified candidate secures air time

but does not discuss matters directly related to his candi-

dacy, is this a use of facilities under section 315?

A. Yes. Section 315 does not distinguish between the

uses of broadcast time by a candidate, and the licensee is

not authorized to pass on requests for time by opposing

candidates on the basis of the licensee’s evaluation of

~ whether the original use was or was not in aid of a

candidacy.

6. Q. If a candidate appears on a variety program for

a very brief bow or statement, are his opponents en-

titled to “equal opportunities” on the basis of this brief

appearance?

A. Yes. All appearances of a candidate, no matter how

brief or perfunctory, are a “use” of a station’s facilities

within section 315.

1l. Q. If a station owner, or a station advertiser, o7

a person regularly employed as a station announcer were

to make any appearances over a station after having

qualified as a candidate for public office, would section

815 apply?

A. Yes. Such appearances of a candidate are a “use”

under section 315.

23 Fed. Reg. at 7818 (emphasis added). On the last answer,

the Commission cited its earlier ruling that found the work

done by a radio announcer to be a “use.” See In re Kenneth

E. Spengler, 14 Rad. Reg. (P & F) 1226b (1957). The Com-

mission also noted its decision in Blondy, 23 Fed. Reg. at

7818.

its judgment as to newsworthy events.” 23 Fed. Reg. at

7818.

Branch does not deny that his on-the-air work as a

news reporter would be classified as a “use” if we looked

solely at the first two sentences of section 315. His stat-

utory argument rests instead on the third sentence.

Congress added that sentence as well as the fourth to

section 315 in 1959. The impetus for the addition was

the response to the Commission’s ruling in the “Lar

Daly” case. In re Telegram to CBS, Inc., 18 Rad. Reg.

(P & F) 288 (1959). Lar Daly, a candidate for mayor

of Chicago, complained to the Commission about tele-

vision newscasts that had shown, among other things,

interviews of his opponents and a film clip of the incum-

bent mayor greeting the Argentinean President at the

airport. The Commission held that a candidate’s appear-

ance on a newscast constituted a “use” of a broadcasting

station, and that Daly was entitled to equal time. /d.

This decision, which upset the Commission’s previous

balance between a broad definition of the term “use” and

freedom for broadcast stations to judge for themselves

4In a 1965 decision, for example, the Commission explicitly

construed the structure of the full text of amended section

315 in this same manner :

Prior to the amendment to Section 315 in 1959, the

Commission held that generally any appearance[s] of a

person regularly employed as a station announcer after

having qualified as a candidate for public office were

“uses” of the station facilities within the meaning of

Section 315. There has been no showing that this general

line of rulings would be inapplicable to this situation

(where the newscaster was identified up to the date of

his candidacy, and prepares and broadcasts the news,

including that of a local nature). The critical considera-

tion is whether the 1959 amendment to Section 315 is

applicable and calls for a different result.

Use of Station by Newscaster Candidate, 40 F.C.C. 433, 433

(1965).

10a

which events merit news coverage, was severely criti-

cized. On rehearing, the Commission frankly recognized

that the ruling was troublesome, yet it gin itself bound

to uphold it:

It may, of course, seem that such a holding is harsh

or unduly rigid and that within the area of political

broadcasts, it has a tendency to restrict radio and

television licensees in their treatment of campaign

affairs. If this be so, the short answer is that such

a result follows not from any lack of sympathy on

our part for the problems faced by licensees in com-

plying with section 315, but from the unconditional

nature of the language of section 315, which we are

not at liberty to ignore.

In re CBS, Inc., 26 F.C.C. 715, 743 (1959) .*

Congress immediately decided to “write back into Sec-

tion 315 this traditional exemption from the equal-time

requirement and to deal with other things that have al-

ways been thought to be exempted from the equal-time

requirement.” 105 Cong. Rec. 16,229 (1959) (Rep.

Harris). Within three months the last two sentences of

section 315 were enacted. See Communications Act

Amendments of 1959, Pub. L. No. 86-274, § 1, 73 Stat.

557, 557.

The legislative history of the 1959 amendments con-

clusively establishes three critical and overlapping points.

First, Congress’ central concern in taking action was to

overrule the Commission’s Lar Daly decision. E.g., S.

Rep. No. 562, 86th Cong., Ist Sess. 2-10 (1959); id. at

14 (additional views of Sen. Hartke) (“All of us agree

5 While acknowledging that “news presentation by radio

and television stations is of inestimable value to the public

interest,” the Commission reaffirmed that “when a station

uses film clips showing a candidate during the course of a

newscast, that appearance of a candidate can reasonably be

said to be a use within the meaning and intent of section 315.”

26 F.C.C. at 742-43.

lla

on the importance of reporting a bill to reverse the Lar

Daly decision.”); H.R. Rep. No. 802, 86th Cong., 1st

Sess. 2-4 (19°9); id. at 18 (supplemental views of Reps.

Mack & Hemphill) (“This legislation is a result of the

clamor which followed that decision.”).* This concern was

so important and so immediate that Congress was un-

willing even to wait for that decision to be considered by

the courts on appeal. See, e.g., H.R. Rep. No. 802, supra,

at 4; 105 Cong. Rec. 16,230 (1959) (Reps. Harris &

Pucinski) ; id. at 16,2386 (Rep. Flynt).

Second, the purpose of overruling Lar Daly was to

restore the understanding of the law that had prevailed

previously. E.9., S. Rep. No. 562, supra, at 2-6, 17-19;

H.R. Rep. No. 802, supra, at 2-3.7 That understanding,

6 See 105 Cong. Rec. 14,440 (1959) (Sen. Pastore) (“We

are merely writing into section 315 an exemption which will

take care of the very ridiculous situation which is presented

because of the Lar Daly decision.”); id. at 14,450 (Sen.

Engle) (‘We propose to reverse the Daly case.’’); id. at

14,452 (Sen. Keating) (the amendments “attempt to remedy

the rather ridiculous result achieved in the Lar Daly case’’) ;

id. at 16,224 (Rep. Budge) (this legislation “is most neces-

sary” to correct ‘‘the impossible situation” created by Lar

Daly); id. at 16,225 (Rep. Brown) (“This legislation has

been drawn carefully ... just to meet” the Lar Daly ruling

‘that “just does not make good, common sense.”’) ; id. at 16,230

(Rep. Harris) (“the crucial thing in this legislation” is ‘‘to

overrule the Lar Daly decision’’) ; see also id. at 14,440 (Sen.

Douglas) ; id. at 14,443 (Sen. Holland) ; id. at 14,445 (Sen.

Case) ; id. at 14,446 (Sen. McNamara) ; id. at 14,453 (Sen.

Javits) ; id. at 16,224 (Rep. Bolling); id. at 16,226 (Rep.

Hoffman) ; td. at 16,228 (Rep. McCormack); id. at 16,232

(Rep. May); id. at 16,238 (Rep. Avery); id. at 16,234-35

(Rep. Rogers); id. at 16,237 (Rep. Jones); id. at 16,240

(Rep. Cunningham); id. at 16,241 (Rep. Bennett); id. at

16,244 (Rep. Quigley).

7 See 105 Cong. Rec. 14,442 (1959) (Sen. Pastore) (‘‘For

almost 32 years we have lived in a situation in which the

decision in the Daly case was not operative. But last Febru-

ary the Commission rendered a very ridiculous decision which

12a

as we have noted, required “equal opportunities” when-

ever any candidate appeared on the air, unless the can-

didate was the subject of “a routine news broadcast.”

See, e.g., 105 Cong. Rec. 14,454 (1959) (Sen. Pastore)

(“The only trouble is that the Commission, which had

sustained the position under the Blondy case, then last

February under the Lar Daly case swung completely to

the other side.”) ; id. at 16,229 (Rep. Harris) (“primary

purpose of this legislation” is to reverse Lar Daly and

restore Blondy and “this traditional exemption from the

equal-time requirement”’) ; id. at 16,235-36 (Rep. Rogers)

(Daly is inconsistent with Blondy, which was “a realistic

and practical result in the public interest’’).

Third, Congress objected to the imposition of “equal

opportunities” obligations on any station that carried

news coverage of a candidate, because it deterred the

broadcast media from providing the public with full cov-

erage of political news events, and many other news

requires that an amendment be made to the law.’’); id. at

14,450 (Sen. Engle) (“[W]Je have had something like 32 years

of experience with the law, and we have had no trouble with

it at all. ... It was not until February of this year, when

the FCC issued its stupid, silly decision in the Lar Daly case,

that we were confronted with any trouble.”) ; id. at 14,455

(Sen. Pastore) (‘“‘Generally all we are doing is restoring the

situation insofar as news is concerned to that which existed

for 32 years, before the Lar Daly decision.”) ; id. at 16,227

(Rep. Celler) (this bill “restores the status quo before the

Lar Daly decision”) ; id. at 16,234 (Rep. Avery) (this bill

restores “the end that is sought and was accepted in the

industry before the Lar Daly decision’) ; id. at 16,236 (Rep.

Mack) (the bill will ‘‘restore a situation which had existed

since 1927 when the original act was passed’’) ; id. at 16,237

(Rep. Harris) (the committee’s intention was “to restore the

original intent of the Congress and the original interpretation

of this basic law’). A proposal was also made in the Senate

to exempt candidate appearances on ‘“‘panel discussions,”

which would have been a considerable shift from the state of

the law before Lar Daly, but it was rejected. See id. at 14,450-

53.

13a

events as well. E.g., S. Rep. No. 562, supra, at 9-10, 13,

14; H.R. Rep. No. 802, supra, at 4-5.8 To the extent that

Congress may have done more than reverse Lar Daly, by

exempting broadcast coverage of news interviews and

news documentaries in addition to newscasts and on-the-

spot coverage of news events, it did so to protect a sta-

tion’s ability to exercise broad discretion in choosing

which newsworthy events to present to the public. L£.g.,

S. Rep. No. 562, supra, at 10-11 (concern is about “news

and information-type programs” that “serve to enlighten

the public”); H.R. Rep. No. 802, supra, at 4-5 (“broad-

casters must be given freedom to exercise their news ©

judgment in permitting candidates to appear in news-

casts” and showing candidates “involved in news

events”); id. at 6 (“in order not to be considered use of

a station, the event to be covered in a newscast must be

news in and of itself”) .°

8 See also, e.g., 105 Cong. Rec. 14,439 (1959) (Sen. Pastore)

(the alternative to this bill is “a blackout in the presentation

of legally qualified candidates in the news type programs’”’) ;

id. at 14,446 (Sen. McNamara) (if Lar Daly stands, “effec-

tive radio and television news coverage of elections would be

seriously jeopardized’’) ; id. at 14,447 (Sen. Hartke) (“‘The

ruling severely restricts the opportunity of the people to

know what is going on.’’) ; id. at 14,451 (Sen. Holland) (these

amendments allow broadcasters “to cover the political news

to the fullest degree’’); id. at 16,226 (Rep. Celler) (‘‘The

overriding consideration in these circumstances is that pas-

sare of the pending measure is urgently needed to protect

the public’s right to know.”) ; id. at 16,240 (Rep. Cunning-

ham) (Lar Daly placed “a news gag... on the entire broad-

casting industry”); id. at 16,242 (Rep. Stratton) (“without

the kind of clarification provided in this legislation fair and

adequate coverage of the news may be seriously impaired’’) ;

id. at 16,246 (Rep. McGovern) (“as matters now stand, it

will be virtually impossible for radio and television stations

to offer adequate news coverage’).

9 See also, e.g., 105 Cong. Rec. 14,443 (1959) (Sen. Holland)

(the proposed exemption is confined to “‘a field of items which

are either newsworthy or are so close to news as to be prop-

14a

Thus Congress’ intent in enacting the amended section

315 is readily discernible. “Appearance by a legally

qualified candidate,” which is not “deemed to be use of a

- broadcasting station,” is coverage of the candidate that

is presented to the public as news. The “appearance” of

the candidate is itself expected to be the newsworthy item

that activates the exemption. “By modifying all four

categories [not deemed to be ‘use’ with the phrase ‘bona

fide,’ Congress plainly emphasized its reliance on news-

worthiness as the basis for an exemption.” Office of

Communication of the United Church of Christ v. FCC,

590 F.2d 1062, 1065 (D.C. Cir. 1978).

The thrust of the language is brought out further in

the third and fourth specific exemptions. The “news

erly excepted”) ; id. at 14,446 (Sen. McNamara) (the amend-

ments leave “‘the control of news coverage of politics in the

hands of the broadcasters’’) ; id. at 14,450 (Sen. Engic) (A

candidate “is entitled to appear on television” if his action

“is a newsworthy event. .. . News is a self-limiting factor.”’) ;

id. at 16,225 (Rep. Brown) (amendments apply to a candidate

who is the subject of coverage “where it is legitimate news,

or the coverage of a legitimate news event’’); id. at 16,227

(Rep. Celler) (this bill safeguards “‘the right of the American

citizenry to obtain at first hand newsworthy events treated

in political campaigns”); id. at 16,286 (Rep. MacDonald)

(The Daly ruling “destroys the program editor’s freedom of

judgment as to what is news and what is not. Newscasters

should not.be restrained against the public interest in proper

judgment of what is news.’’); id. at 16,244 (Rep. Moss)

(“a news development .. . showing the candidate making his

newsworthy statement” would be exempt).

Some Representatives and Senators were concerned, how-

ever, that a station’s broad discretion in choosing which news

events to present could allow favoritism and discrimination

in portraying candidates. This concern was addressed by

continued recognition in the fourth sentence of § 315 that

broadcasters operate in the public interest, a broad obligation

that the Commission enforces more specifically. See Telecom-

munications Research & Action Center v. FCC, 801 F.2d 501

(D.C. Cir.), reh’g denied, 806 F.2d 1115 (1986).

15a

documentary” exemption applies only “if the appearance

of the candidate is incidental to the presentation of the

subject or subjects covered by the news documentary.”

47 U.S.C. § 315(a) (3) (1982) (emphasis added). This

passage relates the candidate’s appearance to the subjects

covered in the program, If the candidate’s appearance

has nothing to do with the subjects that are being cov-

ered as news—whether because the candidate is a regu-

lar employee on all such programs or, to take another

example, because the candidate is being offered a gratui-

tous appearance that realistically is unrelated to the

news content of the program—then the exemption does

not apply. Similarly, the fourth exemption for “on-the-

spot coverage” of news applies only to “coverage of bona

fide news events.” Jd. §315(a)(4). Here again the

focus is on a news event that is being covered, with the

candidate’s appearance expected to occur as part of the

event being covered.

When a broadcaster’s employees are sent out to cover

a news story involving other persons, therefore, the “bona

fide news event” is the activity engaged in by those

other persons, not the work done by the employees cov-

ering the event. The work done by the broadcaster’s

employees is not a part of the event, for the event

would occur without them and they serve only to com-

municate it to the public. For example, when a broad-

caster’s employees are sent out to cover a fire, the

fire is the “bona fide news” event and the reporter does

not become a part of that event merely by reporting it.

There is nothing at all “newsworthy” about the work

being done by the broadcaster’s own employees, regard-

less of whether any of those employees happens also to be

a candidate for public office.

This reading of the statute as not exempting news-

casters is also compelled by the weight of the legislative

history. As we have said, Congress’ intent in the 1959

amendments was to return the industry to the situation

that had prevailed before Lar Daly. The status quo be-

16a

fore Lar Daly allowed a candidate to appear on the air

as the subject of “routine” news coverage without trig-

gering the “equal opportunities” rule, see Biondy, 40

F.C.C. at 285, but did not exempt appearances by a can-

didate who is “regularly employed as a station an-

nouncer.” See 23 Féd. Reg. at 7818; In re Kenneth E.

Spengler, 14 Rad. Reg. (P & F) 1226b (1957). Nowhere

in the legislative history is there the slightest indication

that Congress intended, for the first time, to sweep the lat-

ter class of appearances within the scope of the exemption.

Moreover, Congress’ objection to Lar Daly was that it

discouraged wide broadcast coverage of political news

events by restricting a station’s ability to determine

which news events to present to the public. Congress

solved this problem by exempting any on-air appearance

by a candidate who is the subject of news coverage. It

is irrelevant to that problem whether a station has broad

discretion to determine which of its employees will ac-

tually present the news on the air. That issue may raise

very different problems, which we will consider later,’°

but it did not arise at all in Congress’ debates on the

1959 amendments. On the contrary, considerable concern

was voted about the possibility that “sham” news events

—events that are not bona fide news but are staged by

the candidate—might be seen as exempt from the “equal

opportunities” rule. See, e.g., H.R. Rep. No. 802, supra,

at 6; 105 Cong. Rec. 14,462 (1959) (Sen. Long) (the

amendments apply to a candidate “when he was making

news”) ; id. at 16,236 (Rep. MacDonald) (“staged events

... Should not be viewed as news’). This possibility was

eventually foreclosed, however, by the wording of the

fourth exemption. In denying any exemption for candi-

date appearances through “sham” news events, Congress

once again expressed its view that exemption should be

made only for on-air appearances that are intrinsically

10 See infra section IVC.

17a

newsworthy. At all times, the focus was not on preserv-

ing anyone’s “right” to appear on the air, but on pre-

serving broadcasters’ ability to present to the public cer-

tain kinds of news programs and news events.”

In opposition to that consistent approach, Branch asks

this court to read the phrase “[a]ppearance by a legally

qualified candidate on any [news program]” as exempt-

ing from the “equal opportunities” rule all on-air work

done by newscaster candidates. We cannot do so. As we

have already noted, such a reading would be at odds with

the law before Lar Daly, which Congress explicitly sought

to restore through the 1959 amendments. In addition,

this reading would raise a station’s news employees to

an elevated status not shared by any of its other em-

ployees: although the work done on the air by any other

employee on any other program would not be exempt,

see, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974),

the work done on the air by news employees would be.

Yet this novel division was never endorsed, or even dis-

cussed, by Congress.

11The Commission’s subsequent interpretations of § 315

to allow an exemption from the “equal opportunities” rule ;

for coverage of candidates in debates initiated by non-

broadcasters, see In re Aspen Inst., 55 F.C.C.2d 697 (1975),

aff'd sub nom. Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), :

cert. denied, 429 U.S. 890 (1976), in delayed broadcasts of

political events, see In re Delaware Broadcasting Co., 60

F.C.C.2d 1030 (1976), aff’d sub nom. Office of Communication

of the United Church of Christ v. FCC, 590 F.2d 1062 (D.C.

Cir. 1978), and in debates initiated by broadcasters, see In

re Henry Geller, 95 F.C.C.2d 1236 (1983), aff’d mem. sub nom.

League of Women Voters Educ. Fund v. FCC, 731 F.2d 995

(D.C. Cir. 1984), are harmonious with Congress’ intent to

ensure that the public will have access to a broad array of

newsworthy events. But none of these interpretations can

be used to justify an exemption for newscaster candidates

who are not the subjects of news coverage during their time

on the air.

18a

Finally, Branch argues that the Commission’s position

in this case is inconsistent with the position it took in a

1960 ruling, which was upheld on appeal. See In re

KWTX, 40 F.C.C. 304, aff'd sub. nom. Brigham v. FCC,

276 F.2d 828 (5th Cir. 1960) (per curiam). We think,

however, that these-decisions were wrong, and do not

reflect a proper interpretation of section 315. In KWTX,

the Commission held that the “equal opportunities” rule

was not applicable to the on-air appearances of a weath-

erman. See 40 F.C.C. at 304-05. In its ruling, however,

the Commission merely stated this conclusion without

providing any analysis of the statutory language or any

mention of the legislative history. The Fifth Circuit’s

brief per curiam affirmance did set out the statutory

language, but disposed of the issue in a single paragraph.

See 276 F.2d at 830. It also did not mention the legisla-

tive history, but focused instead on the fact that no

favoritism by the station had been shown. See id.

Five years later, however, the Commission revisited

this issue. See Use of Station by Newscaster Candidate,

40 F.C.C. 433 (1965). The Commission stated: “In view

of the frequency with which these situations have arisen,

we have re-examined the question of the applicability

here of the 1959 amendment, and have researched at

length the legal and legislative history considerations.”

Id. at 434. Based on its more detailed consideration of

the matter, the Commission reversed its position and con-

cluded that the 1959 smendments did not apply to ex-

empt newscaster candidates from the “equal opportuni-

ties” rule. Its stance has remained unchanged ever since

that decision.

We agree, therefore, that the Commission has not al-

ways taken the same position on this issue. If the ques-

tion for this court were how much deference to give to

the Commission’s views, this change of heart might offer

slender support for Branch’s position. See, e.g., FEC v.

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37

19a

(1981). On the other side, of course, would be the more

substantial facts that the Commission changed its posi-

tion upon fuller consideration of the issue for a very

good reason, and has faithfully adhered to its current

position for more than twenty years.. But in the first

instance, always, the question for a court is not how much

deference to give to an agency’s interpretation of a stat-

ute, but whether that interpretation is correct. See

Chevron, 467 U.S. at 843 & n.9, 845. On the issue of

statutory construction raised here, we think the Commis-

sion’s current position is correct, and Congress’ intent

is clear. The weight of the legislative history, indeed,

is overwhelming. No tribunal that has considered the

language of section 315 in light of its legislative history

has ever endorsed Branch’s reading of the statute, and

we also reject it.”

IV.

We have determined that section 315 does not exempt

newscaster candidates from the strictures of the “equal

opportunities” rule. Branch challenges the statute, as so

interpreted, on several constitutional grounds. Common

to all of the challenges is Branch’s assertion that the

Comsiission acted arbitrarily and capriciously by ini-

tially refusing “to undertake a review here of previous

determinations as to the constitutionality of section 315.”

Branch, 101 F.C.C.2d at 904 n.4. The Commission did

not err in taking this position, for although an adminis-

trative agency may be influenced by constitutional con-

#2 In light of Judge Starr’s concurrence, we wish to specify

one point. We do not believe that the language of the statute,

taken alone, is unambiguous on this issue. We do believe,

however, that when we “employ[] traditional tools of statu-

tory construction,” and inform our reading of the statute by

an examination of its legislative history, “the intent of Con-

gress is clear.”” Chevron, 467 U.S. at 843-44 & n.9. We there-

fore do not continue on to consider the reasonableness of the

agency’s position. See id. at 844 n.9 (“If the intent of Con-

gress is clear, that is the end of the matter.”’).

20a

siderations in the way it interprets or applies statutes,

it does not have jurisdiction to declare statutes uncon-

stitutional. See, e.g., Weinberger v. Salfi, 422 U.S. 749,

765 (1975); Johnson v. Robison, 415 U.S. 361, 368

(1974); Public Utils. Comm’n v. United States, 355 U.S.

534, 589 (1958). In addition, the Commission did con-

sider Branch’s constitutional arguments insofar as they

had a bearing on its own interpretation and application

of section 315. See Branch, 101 F.C.C.2d at 904-05. We

think this approach was entirely proper, and we turn

now~to Branch’s substantive challenges to the constitu-

tionality of section 315.

Branch’s first objection is that the statute extin-

guishes his right to seek political office. That he has

such a right is undeniable, though the Constitution and

the Supreme Court’s cases in the area do not pinpoint

the precise grounds on which it rests. See, e.g., Jenness

v. Fortson, 403 U.S. 431, 438-40 (1971); Lubin v.

Panish, 415 U.S. 709, 716 (1974); Bullock v. Carter,

405 U.S. 184, 142-43 (1972); cf. Williams v. Rhodes,

393 U.S. 23, 30-31 (1968)..* But whatever its source,

18 This court’s recent decision<in Meredith Corp. v. FCC,

809 F.2d 863 (D.C. Cir. 1987), a challenge to the constitu-

tionality of continued enforcement of the Commission’s fair-

ness doctrine, bears out the soundness of the Commission’s

approach here. In Meredith, we reversed the Commission

because it had refused to consider constitutional issues that

were raised as a defense to an enforcement proceeding. But

we specifically recognized that although the Commission may

be influenced by constitutional considerations in the way it

interprets and applies statutes, it is “not free to declare an

act of Congress unconstitutional,” id. at 872, and we cautioned

that “[i]f the Commission had concluded that the [fairness]

doctrine was congressionally mandated and properly applied

to Meredith, it would, as we have indicated, not have been

obliged to reach the constitutional question.” Jd. at 873 n.11.

14 Other cases cited by the petitioner do not concern a right

to run for political office, but instead the right to be free from

21a

the right is not implicated in this case. “In approaching

candidate restrictions, it is essential to examine in a

realistic light the extent and nature of their impact on

voters.” Bullock, 405 U.S. at 148. Here that impact is

slight. The “equal opportunities” rule does not extin-

guish anyone’s right to run for office. It simply provides

that certain uses of a broadcast station by a candidate

entitle other candidates for the same office to equal time.

That the rule will affect some candidates favorably and

others unfavorably is obvious. It may cause certain can-

didates to receive less time on the air than if the statute

did not exist. But the Supreme Court has held that no

individual has any right of access to the broadcast media.

Columbia Broadcasting System, Inc. v. Democratic Nat’l

Comm., 412 U.S. 94 (1973). “It is the right of the

viewers and listeners, not the right of the broadcasters,

which is paramount.” Red Lion Broadcasting Co. V.

FCC, 395 U.S. 367, 390 (1969).

The core of Branch’s challenge on this point is that the

statute imposes an undue burden on his ability to run

for office because he cannot, during the time he is a can-

didate, do his normal work of reporting news on the air

for station KOVR. But nobody has ever thought that a

candidate has a right to run for office and at the same

time to avoid all personal sacrifice. See United States

government action that violates other express constitutional

restrictions. The Supreme Court has recognized that Ameri-

can citizens “do have a federal constitutional] right to be con-

sidered for public service without the burden of discrimina-

tory disqualifications. The State may not deny to some the

privilege of holding public office that it extends to others on

the basis of distinctions that violate federal constitutional

guarantees.” Turner v. Fouche, 396 U.S. 346, 362-63 (1970)

(footnotes omitted). See also McDaniel v. Paty, 435 U.S. 618

(1978) (restriction on political activity of ministers violates

free exercise of religion) ; Torcaso v. Watkins, 367 U.S. 488

(1961) (religious oath test for eve office violates free

exercise clause).

22a

Civil Serv. Comm’n v. National Ass’n of Letter Carriers,

413 U.S. 548, 567 (1973) (“Neither the right to associate

nor the right to participate in political activities is abso-

lute in any event.”). Even if the practicalities of cam-

paigning for office are put to one side, many people find

it necessary to choose between their jobs and their candi-

dacies. The Hatch Act requires government employees to

resign from work if they wish to run for certain political

offices, see 5 U.S.C. §§ 7824-7827 (1982), and involves

many more intrusive restrictions as well, yet the Supreme

Court has upheld it against constitutional challenge. See

Letter Carriers, 413 U.S. 548; United Public Workers v.

Mitchell, 3830 U.S. 75 (1947). More recently, the Court

upheld a Texas law that required certain public officials

to resign from office if they wished to become candidates

for certain other offices. Clements v. Fashing, 457 U.S.

957 (1982).

Indeed, the burdens Branch complains of are borne by

all other radio and television personalities under section

315, though the exception he seeks would apply only to

newscasters. In Paulsen v. FCC, 491 F.2d 887 (9th Cir.

1974), those burdens were upheld against essentially the

same objection made here. The petitioner, a television

performer who had announced his candidacy for Presi-

dent, contended that section 315 “forces him to give up

his means of livelihood as a television performer in order

to run for office.” Jd. at 891-92. In Paulsen the chal-

lenge was clothed in an equal protection guise, and per-

haps at bottom Branch’s challenge is also one of equal

protection. However that may be, the argument is the

same, and so is the result. Under established law, Paul-

sen was correct in finding the burdens imposed by section

315 justifiable as “both reasonable and necessary to

achieve the important and legitimate objectives of encour-

aging political discussion and preventing unfair and un-

equal use of the broadcast media.” /d. at 892.

23a

B. sit

Branch’s second constitutional objection to section 315

is that the “equal opportunities” rule violates the first

amendment. He cites Miami Herald Publishing Co. Vv.

Tornillo, 418 U.S. 241 (1974), where the Supreme Court

unanimously struck down a Florida law that gave polit-

- ical candidates a right to reply to criticisms and attacks

published in newspapers. The Court held that the law

compelled editors or publishers to publish material against

their will, thus exacting an unconstitutional “penalty on

the basis of the content of a newspaper.” Id. at 256. The

Court broadly declared that a “[g]overnment-enforced

right of access inescapably ‘dampens the vigor and limits

the variety of public debate.’” Jd. at 257 (quoting New

York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) ).

The “equal opportunities” rule, in Branch’s view, is iden-

tical to a right-of-reply statute in its impact.

The Supreme Court has expressly held, however, that

the first amendment’s protections for the press do not

apply as powerfully to the broadcast media. In Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Court

upheld the government’s authority “to put restraints on

licensees in favor of others whose views should be ex-

pressed on this unique medium.” Jd. at 390. What makes

the broadcast medium unique, in the Court’s view, is the

scarcity of broadcast frequencies. Jd. at 389-90.

While doubts have been expressed that the scarcity

rationale is adequate to support differing degrees of first

amendment protection for the print and electronic media,

see, e.g., Telecommunications Research & Action Center

v. FCC, 801 F.2d 501, 506-09 (D.C. Cir.), reh’g denied,

806 F.2d 1115 (1986); Meredith Corp. v. FCC, 809 F.2d

868, 866-67 (D.C. Cir. 1987), it remzins true, nonethe-

less, that Branch’s first amendment challenge is squarely

foreclosed by Red Lion. In Red Lion, the Supreme Court

upheld as constitutional the-Commission’s authority to

enforce the fairness doctrine, which requires broadcast

24a

stations to give fair coverage to each side of a public

issue, and in particular upheld “its specific manifesta-

tions in the personal attack and political editorial rules.”

395 U.S. at 386. In the course of its opinion, the Court

held that the statutory “equal opportunities” rule in

section 315 and the Commission’s own fairness doctrine

rested on the same constitutional basis of the govern-

ment’s power to regulate “a scarce resource which the

Government has denied others the right to use”:

In terms of constitutional principle, and as en-

forced sharing of a scarce resource, the personal at-

tack and political editorial rules are indistinguishable

from the equal-time provision of § 315, a specific

enactment of Congress requiring stations to set aside

reply time under specified circumstances and to which

the fairness doctrine and these constituent regula-

tions are important complements. That provision,

which has been part of the law since 1927, Radio

Act of 1927, § 18, 44 Stat. 1170, has been held valid

by this Court as an obligation of the licensee reliev-

ing him of any power in any way to prevent or

censor the broadcast, and thus insulating him from

liability for defamation. The constitutionality of the

statute under the First Amendment was unques-

tioned. Farmers Educ. & Coop. Union v. WDAY,

360 U.S. 525 (1959).

Id. at 391 (footnote omitted). Red Lion thus compels us

to reject Branch’s first amendment claim.

Nor can we adopt Branch’s suggestion that this court

would be justified in stepping away from Red Lion. The

Supreme Court recently reaffirmed Red Lion and dis-

avowed any intention “to reconsider our longstanding

approach without some signal from Congress or the FCC

that technological developments have advanced so far

that some revision of the system of broadcast regulation

may be required.” FCC v. League of Women Voters of

Cal., 468 U.S. 364, 376 n.11 (1984). The Commission

may now have sent just such a signal by issuing a report

204

which concludes that section 315 is unconstitutional and

should be abandoned. See General Fairness Doctrine

Obligations of Broadcast Licensees, 102 F.C.C.2d 148

(1985).2% But unless the Court itself were to overrule

Red Lion, we remain bound by it.

Branch’s final constitutional challenge to section 315

is that it impermissibly limits the discretion of broadcast

stations to select the particular people who will present

news on the air to the public. Branch thus attempts to

press the third-party rights of broadcasters who are not

themselves parties to this case. Although the general rule

is that a party “must assert his own legal -rights and

interests, and cannot rest his claim to relief on the legal

rights or interests of third parties,” Warth v. Seldin, 422

U.S. 490, 499 (1975), the Supreme Court has also stated

that “[w]lithin the context of the First Amendment, the

Court has enunciated . . . concerns that justify a lessen-

ing of prudential limitations on standing.” Secretary

of State v. J.H. Munson Co., 467 U.S. 947, 956 (1984);

see also Gooding v. Wilson, 405 U.S. 518 (1972); Thorn-

hill vy. Alabama, 310 U.S. 88 (1940). |

Here, as in Munson, the “activity sought to be pro-

tected is at the heart of the business relationship between”

15In its report, the Commission found that “the various

print and electronic media exist in a widely diverse and com-

petitive information marketplace.” See General Fairness

Doctrine Obligations, 102 F.C.C.2d at 202; see also id. at

198-202. It also exhaustively canvassed the significant and

growing contributions to this market of cable television, low

power television multichannel multipoint distribution service,

video cassette recorder, satellite master antennae systems,

and other electronic media, including recent advancements in

satellite technology. See id. at 208-17. When all of these

technologies are taken into account, “the overall number of

broadcast frequencies exceeds the total number of daily news-

papers in the United States.” Jd. at 217.

26a

Branch and KOVR, and Branch’s “interests in challeng:

ing the statute are completely consistent with the First

Amendment interests of the [broadcasters he] repre-

sents.” 467 U.S. at 958. It makes no difference that a

broadcaster could bring this challenge in a separate suit.

Id. at 957-58.

Nonetheless, the third-party challenge Branch advances

is rebutted by Red Lion. A burden on the ability to pre-

sent a particular broadcaster on the air, which applies

to all broadcasters irrespective of the content of the news

they present, is a much less significant burden than rules

requiring the transmission of replies to personal attacks

and political editorials, which were upheld in Red Lion.

The latter provisions apply directly to political speech,

and weigh more heavily on some messages than on others,

depending on the precise content of the message conveyed.

In contrast, the burdens on broadcasters that Branch

asserts here do not “impair the discretion of broadcasters

to present their views on any issue or to carry any par-

ticular type of programming.” Columbia Broadcasting

System, Inc. v. FCC, 453 U.S. 367, 396-97 (1981). More-

over, we note again that there is no right of any par-

ticular individual to appear on television. See, e.g., Co-

lumbia Broadcasting System, Inc. v. Democratic Nat'l

Comm., 412 U.S. 94, 118 (1978).

The petition for review is, therefore,

Denied.

27a

STARR, Circuit Judge, concurring: Although I concur

in the court’s judgment and much of its thorough opin-

ion, I write separately to express a different perspective

about the case, and especially the extent to which the

Federal Communications Commission’s interpretation is

mandated by the statute. Briefly stated, I believe the

statute more naturally lends itself to petitioner’s inter-

pretation, but that Congressional intent is insufficiently

clear to overturn the Commission’s contrary reading.

The issue before us is the meaning of the “equal op-

portunities” requirement of section 315(a) of the Fed-

eral Communications Act, 47 U.S.C. § 315(a) (1982). As

the court indicates, two of the four sentences of section >

315(a) are of particular relevance here. The first sen-

tence sets forth the “equal opportunities” requirement:

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 oppor-

tunities to all other such candidates for that office

in the use of such broadcasting station: Provided,

That such licensee shall have no power of censorship

over the materia] broadcast under the provisions of

this section.

Id. § 815(a). The third sentence then provides exemp-

tions from the strictures mandated by the first sentence:

Appearance by a legally qualified candidate on any—

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the ap-

pearance of the candidate is incidental to the

presentation of the subject or subjects covered

by the news documentary), or

(4) on-the-spot coverage of bona fide news

events (including but not limited to political con-

ventions and activities incidental thereto),

28a

shall not be deemed to be use of a broadcasting sta-

tion within the meaning of this subsection.

Id.

Section 315(a) is thus crystal clear: bona fide news-

casts are exempt from its “equal opportunities” require-

ment. Since in this case there is no question but that

Mr. Branch in reporting his three-minute news segments

appears on a bona fide newscast, his appearance would

not be deemed a use of a broadcasting station under a

straightforward reading of section 315(a).

As the court acknowledges, the Fifth Circuit recog-

nized the force of this common-sense interpretation in

Brigham v. FCC, 276 F.2d 828 (5th Cir. 1960). In

Brigham, the court upheld the Commission’s determina-

tion (later repudiated, see Use of Station by Newscaster

Candidate, 40 F.C.C. 433 (1965) ) that a weathercaster’s

appearance fell within the “bona fide newscast” exemp-

tion of section 315(a) (1). The Fifth Circuit stated with

admirable brevity:

There is not the slightest hint in the undisputed

facts that this weathercaster’s appearance involved

anything but a bona fide effort to present the news.

. . . [H]is employment is not something arising out

of the election campaign but, rather, is a “regular

job.” Certainly the facts do not indicate any favor-

itism on the part of the station licensee or intent to

discriminate among candidates.

Brigham, 276 F.2d at 830.

Eschewing Brigham’s simplicity, the court examines

in detail the legislative history of the 1959 amendments

that created the section 315(a) exemptions. Cf. Burling-

ton Northern Railroad Co. v. Oklahoma Tax Commis-

sion, 107 S. Ct. 1855, 1859-60 (1987). After a careful

evaluation of the legislative materials, the court quite

rightly concludes that Congress, in enacting the exemp-

29a

tions, intended to protect broadcast stations’ discretion to

air newsworthy events. See Panel Op. at 14.

From that unexceptionable premise, however, the court

derives the general principle that Congress intended the

exemption to extend only to “coverage of the candidate

that is presented to the public as news.” Panel Op. at 15.

But there is a difficulty with this analysis. Through its

finely-honed construction of the third sentence of the

statute, the court moves rather far away from the key

language of the first sentence of section 315(a), namely

“permit” and “use.” When a newscaster reports the

news, there is no “use” or “permitting” of a use in the

ordinary sense of those words. Employers do not “per-

mit” their employees to “use” broadcast facilities. Em-

ployees are hired to do their jobs. Once on the payroll,

they have to carry on their duties; there is no “permis-

sion” being granted in the everyday sense of the word.

The thrust of the first sentence, in short, is to regulate

broadcaster favoritism and candidate-initiated appear-

ances, which is what Brigham held.

For these reasons, a more natural statutory interpre-

tation would exempt newscast reporters who are just

doing their jobs from the “equal opportunities” require-

ment of section 315(a). But, unfortunately for Mr.

Branch, the most natural reading is not the only reading

that will pass muster under governing principles of stat-

utory construction. What is more, as the cuvurt faithfully

recounts, the legislative history contains suggestions that

Congress adopted the 1959 amendments in order to re-

store the understanding of the law that had prevailed

prior to the Commission’s ill-fated Lar Daly decision.

See id. at 12-13 & n.7. Since that pre-Lar Daly body of

law included the principle that a newscaster’s appear-

ance was indeed a “use” within section 315(a), see 23

Fed. Reg. 7817, 7818 (1958), it is not unfair to conclude

that the legislative history adds an additional dash of

30a

uncertainty in the search for Congress’ intent. That

Congressional intent is ambiguous is, of course, quite a

different matter than concluding, as the court apparently

does, that Congress clearly intended to exclude news-

casters from the exemptions.

It is thus the ambiguity of the Legislature’s intent,

not the supposed crystalline clarity of the statute (and

legislative history), that in my view carries the day for

the Commission. Under Chevron principles, courts are,

of course, bound to defer to an agency’s reasonable inter-

pretation of its governing statute if Congress’ intent is

unclear. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837,

842-44 (1984); cf. INS v. Cardoza-Fonseca, 107 S. Ct.

1207, 1221-22 (1982). In light of the two permissible

readings of the statute and the support that the Com-

mission’s interpretation enjoys in the legislative history, ,

the court correctly holds that the Commission’s “news-

caster candidacy” rule passes muster under Chevron. At

the same time, however, the Commission is, in my view,

by no means bound to its current interpretation, which

as I see it embodies the less natural and indeed less

sensible reading of what Congress passed.

31a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 86-1256

SEPTEMBER TERM, 1986

William H. Branch,

Petitioner

V. aie

Federal Communications Commission ttle

United States of America,

Respondents

American Legal Foundation,

Consumer Federation of America, et al.,

Intervenors

PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL

COMMUNICATIONS COMMISSION

Before: BORK and STARR, Circuit Judges,

and McGowan, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the petition for review of

an order of the Federal Communications Commission, and was

argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED, by this Court, that the petition

for review is hereby denied, in accordance with the Opinion for

the Court filed herein this date.

Per Curiam

For The Court

George A. Fisher

.. Clerk

Date: July 21, 1987

Opinion for the Court filed by Circuit Judge Bork.

Concurring opinion filed by Circuit Judge Starr.

32a

APPENDIX C

Before the

Federal Communications Commission

Washington, D.C. 20554

In re Request by )

William H. Branch

for

Declaratory Ruling

M mn Onini 1 Ord

Adopted: March 26, 1986;

Released: March 31, 1986;

By the Commission:

1. The Commission has before it a petition for

reconsideration of its ruling of August 12, 1985,! in whichewe

denied petitioner's request for a declaratory ruling that

appearances by legally qualifed candidates for public office in

their capacity as newscaSters would no longer be subject to the

“equal opportunities" required by Section 315 of the

Communications Act of 1934, as amended.

2. In his petition, Mr. Branch reiterates his general challenge to

Section 315's constitutionality and, more particularly,.as applied

by the Commission to newscaster-candidate appearances. Mr.

Branch also contends that in denying his request the

Commission has continued to misinterpret the legislative

history of the news exemptions to Section 315 which, in his

view, does not support application of Section 315 to newscaster

_ 1101 FCC 2d 901. On September 23, 1985, the American Legal

Foundation filed an opposition, to which Mr. Branch replied on September

30.

33a

candidates during otherwise exempt news programming.

Lastly, Mr. Branch continues to argue that his appearances will

be limited to “nonpolitical"” news material to avoid even that

possibility that his campaign would be furthered. Mr. Branch

adds that he exercises no control over the editorial content of

the news he reports.

3. Petitioner has provided no basis for reconsideration of

our decision. The legislative history of the Section 315 news

exemptions indicates that Congress enacted them to enhance the

unfettered news coverage of the political arena during campaign

periods. In order to minimize any unfair advantage which

could result from the amendment, gress indicated that the

exemptions would not apply where candidates initiated the

coverage themselves or were in control of the production or

format of the news. Despite Mr. Branch's argument that he

does not editorially control the material, as a newscaster he is a

part of the news production and delivery team. Furthermore,

Congress believed that assuring relative equality of treatment

for candidates outweighed the potential for intrusion upon

journalistic discretion. Court precedent and previous

Commission decisions support this interpretation of Section

315, including its applicability to candidate appearances

irrespective of whether they are "political" or "nonpolitical" in

nature.2 The Commission correctly deferred any ultimate

disposition of Mr. Branch's general constitutional challenge to

Cgngress and the courts, the traditional forums for such

determinations.

4. In view of the above, pursuant to Section 1.106 of the

Commission's rules, the petition for reconsideration IS

DENIED.

2Pat Paulsen, 33 FCC 3d FCC 2d 297 (B/c Bur. 1972), review denied,

33 FCC 2d 835 (1972), aff'd sub nom. Paulsen v. FCC, 491 F.2d 887

(9th Cir. 1974). See also Use of Station by Newscaster Candidate for

Public Office, 40 FCC 433 (1965), where the Commission by public

notice first refused to exempt newscaster-candidate appearances.

APPENDIX D

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In re Request by

William H. Branch

for

ee ee

Declaratory Ruling

MEMORANDUM OPINION AND ORDER

Adopted : August 5, 1985; Released: August 12, 1985

BY THE COMMISSION: COMMISSIONERS RIVERA AND

PATRICK CONCURRING IN THE RESULT.

35a

1. The Commission has before it a request for a declaratory

ruling involving Section 315(a) of the Communications Act of

1934, as amended, filed by William H. Branch.!

‘ REQUEST

2. Branch states that he is a news reporter at television

station KOVR, Stockton, California, and that he had intended

to run in the November 1984 Loomis, California, town council

election. Had Branch become a legally qualified candidate for

public office during the general election and ontinued his on-

the-air appearances, pursuant to the Commission's

interpretation of Section 315, KOVR would have been required

to provide "equal opportunities" to his opponents. KOVR

informed Branch that it would not provide such time to his

opponents. Instead, he would have been required to take a

leave of absence for the duration of the campaign, with no

10n August 10, 1984, Branch filed a request for an expedited

declaratory ruling with respect to the issues raised herein. Shortly

thereafter, he informed the Commission that an expedited ruling would not

be necessary since he no longer intended to run as a candidate for the

Loomis, California, town council. On August 30, 1984, a memorandum

in support of the petition was filed by Michael A. Hackard on behalf of

Branch. By letter, which the Commission received September 17, 1984,

Branch requesicd that the Commission delay a decision in this matter until

after the November 6 election.

On October 26, 1984, the National Association of Broadcasters

(NAB) filed a statement in partial support of Branch's request, asking that

the Commission seck public comment on this matter. Because the

legislative, judicial, and Commission precedents are clear with respect to

the issues raised herein, we do not feel public comment is necessary.

On October 29, 1984, the American Legal Foundation (ALF) filed

an opposition to the Branch petition. The gravamen of ALF's arguments

is that Branch's request would violate the basic congressional objective in

enacting Section 315(a) of the Communications Act -- that is, to ensure

that all candidates for public office are treated similarly in their use of

broadcast facilities.

36a

assurance of being rehired after the election. Branch requests

that the Commission declare the "equal opportunities" provision

of Section 315 to be unconstitutional. He also argues that the

Commission's interpretation of Section 315 violates first

amendment free speech objectives and is overbroad in its

application. Branch asserts that the legislative history of the

1959 amendments clearly indicates that the Commission should

modify its interpretation of Section 315 and exempt the

appearances of a newscaster/candidate from the “equal

opportunities" provision of Section 315.

DISCUSSION

A. CASE AND LEGISLATIVE HISTORY

3. Section 315(a) requires that if broadcasters permit a

legally qualified candidate to "use"? thei facilities, they must

afford equal opportunities to the candidate's opponents. The

purpose of Section 315, originally Section 18 of the Radio Act

of 1927 (44 Stat 1162), is to assure equality of treatment to

candidates for public office. 67 Cong. Rec. 12502 (1926); 105

Cong. Rec. 14439, 1445] (1959). In 1959, the Commission held

that Section 315 required "equal opportunities” to be afforded to

the opponents of those Chicago mayoral candidates who

appeared on television newscasts. Telegram to CBS, Inc. (Lar

Daly), 18 RR 238 (1959), recon. denied, 26 FCC 715 (1959).

Congress reacted to’ that ruling by amending Section 315 to

2in general, any appearance by a legally qualified candidate on a

nonexempt program, by voice or picture, where the candidate's

participation is such that he will be identified by members of the viewing

or listening audience, constitutes, a "use." Law of Political Broadcasting

and Cablecasting, -- FCC 2d -- 1984); H. R. 92-65, 92d Cong., Ist Sess. 9

(1971).

37a

exempt four categories of news programming.> The purpose

of the amendement is set forth clearly in the Senate report,

which states:

If the present position of the Federal

Communications Commission with regard to

Section 315 remains unchanged, the Committee feels

that this would tend to dry up meaningful radio and

television coverage of political aor, [S. Rep.

No. 562, 86th Cong., Ist Sess. 10 (1959).]

The amendment created situations where broadcasters need not

provide absolute equality of treatment to candidates appearing

on exempt programs. In order to minimize any unfair

advantage which could result from the amendement, Congress

indicated that the exemptions would not apply where candidates

initiated the coverage themselves. While discussing the

proposed amendments on the Senate Floor, Senator Pastore

chairman of the subcommittee which drafted the amendments,

Stated:

3Section 315(a) of the Communications Act states in pertinent part:

Appearance by a legally qualified on any --

(1) bona fide newscast,

(2) bona fide news interview,

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

incidental to the presentation of the subject or subjects covered by

the news documentary), or

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

limited to political conventions and activities incidental thereto),

shall not be deemed to be a use of a broadcasting station within the

meaning of this subsection.

38a

That is correct, provided he did not initiate the

newscast, provided he did nothing affirmatively to

advance his own candidacy -- in other words, if his

appearance was part of the information given to the

public as a newscast. [/d. at 14446 (emphasis

added).]

On the House side, Congressman Brown stated with regard to

a candidate's exempt appearance:

He cannot put on a program of his own to help his

own candidacy. Instead, it must be newsworthy,

but it must be instigated by the station or by the

news reporters that interview him. [105 Cong. Rec.

16225 (1959).]

In addition to specifying that candidates were not to initiate

exempt appearances, the legislative history of the 1959

amendments show that Congress did not intend that candidates

have control over the “format and production" of these

appearances. S.Rep. No. 562, 86th Cong. Ist Sess. ll (1959).

The Senate Report stated:

It should be noted that the programs that are being

exempted in this legislation have one thing in

common. They are generally news and

information-type programs designed to disseminate

information to the public and in almost every

instance the format and production of the program is

under the control of the broadcast station, or the

network in the case of a network program. [S.

Rep. No. 562, 86th Cong. Ist Sess. 1] (1959).]

The year after the news exemptions were enacted, the

Commission ruled that appearances on newscasts by a

weatherman who was a legally qualified candidate were not

subject to the "equal opportunities"provision of Section 315 by

virtue of their falling into one of the four exempt news

categories. KWTX Broadcasting Co., 40 FCC 304 (1960),

aff'd sub nom. Brigham v. FCC, 276 F.2d 828, 830 (Sth Cir.

39a

1960). Subsequently, the Commission recognized that this

decision was inconsistent with the legislative history of the 1959

amendments and ruled that a candidate's appearance "on a

news-type program in which he has participated in ‘the format

and production" would be subject to “equal opportunities."

Use of Station by Newscaster Candidate for Public Office, 40

FCC 433, 434 (1965) (hereinafter Newscaster Candidacy). See

S. Rep. No. 562, 86th Cong. Ist Sess. ll (1959). (See pars. 8

and 9, below, for further discussion).

B. CONSTITUTIONAL ARGUMENTS

4. While generally challenging the constitutionality of

Section 315, Branch's specific concern here is that the

Commission's interpretation of it, as applied to news

reporters/candidates, is unconstitutional.4 Branch alleges, citing

CBS Inc. v. FCC, 453 U.S. 367, 395 (1981) (quoting

Columbia Broadcasting System,-Inc. v. Democratic National

Commitee, 412 U.S. 94, 110 (1973), that the Commission's

exclusion of reporters from the news exemptions intereferes

with the ability of braodcasters to exercise their journalistic

freedoms and singles out news reporters/candidates "from

4 To the extent that Branch is urging that the Commission cease

enforcing Section 315 based on constitutional objections to it, we delcine

to take that action. The Commission has previously expressed its concern

to Congress about the continuing wisdom of Section 315 and other

content-control sections of the Communications Act and asked that

consideration be given to repealing these provisions. We recognize that

the constitutionality of a government agency's actions must always be

subject to review, and in light of speech and press related concerns

associated with its regulatory policies, the Commission has been

particularly mindful of the constitutional dimensions of its actions. This

is not, however, a proceeding in which there is a well developed record on

the constituuional balancing involved in evaluating Section 315. We are

mindful, moreover, that such constitutional decisions have "generally been

thought beyond the jurisdiction, of administrative agencies..." Oestereich

v. Selective Service Board, 393 U. S. 233, 242 (1968). Thus, we decline

to undertake a review here of previous determinations as to the

constitutionality of Section 315.

40a

exercising any form of speech over the airwaves." We find

these arguments to be without merit. Congress has determined

in enacting Section 315 that there is a governmental interest in

assuring that licensees afford equitable treatment to all

candidates running for a particular office, and that this interest

— justifies imposing certain limitations on broadcast speech.

McCarthy v. FCC, 390 F.2d 471, 473 (D.C. Cir. 1968).

Moreover, Section 315 does not discriminate against Branch

and those individuals similarly situtated because all candidates

for public office are treated in the same manner. As the

Supreme Court observed in United States Civil Service

Commission v. National Association of Letter Carriers, 413

U.S. 548 (1973): ;

The restrictions...are not aimed at particular parties,

groups, or points of view, but apply equally to all

partisan, activities of the type described. They

discriminate against no racial, ethnic, or religious

minorities: Nor do they seek to control political

opinions or beliefs, or to interfere with or influence

anyone's vote at the polls. [/d. at 564.]

5. Branch also alleges that the Commission's applicat:on of

Section 315 is unconstitutionally overbroad because it prohibits

nonpolitical appearances by candidates.) The Commission

and the court of appeals specifically addressed the issue of

"nonpolitical” uses where a legally qualified candidate asserted

that his appearances as an entertainer should be exempt from

the "equal opportunities" requirement of Section 315. Pat

Paulsen, 33 FCC 2d 297 (B/c Bur. 1972), review denied, 33

FCC 2d 835 (1972) aff'd sub nom. Paulsen v. FCC, 491 F.2d

887 (9th Cir. 1974). (hereinafter Paulsen). The Commission, ~

in denying the application for review, emphasized that Section

315 did not distinguish between political and nonpolitical

"uses." Furthermore, the Commission pointed out that under

the no-censorship provision of Section 315, a licensee could not

require a candidate to present only nonpolitical material during a

broadcast. See Farmers Educational and Cooperative Union of

America v. WDAY, Inc., 360 U.S. 525, 529 (1959). Further,

in upholding the Commission's Paulsen decision, the court

noted that a political and nonpolitical definitional approach to

"uses" could raise serious first amendment problems in terms

of enlarging the Commission's involvement in broadcasting

operations. Paulsen, 491 F.2d at 891. Accordingly, we believe

our interpretation is both consistent with the congressional

intent and is reasonably tailored to avoid first amendment

concerns.

SBranch asserts that under the Commission's current application of

Section 315 one of three situations would occur if he were to become a

legally qualified candidate for town council: (1) his employment duties

with KOVR would no longer include on-the-air appearances; or (2) he

would have to take a leave of absence without pay with no assurance of

being rehired after the election; or (3) KOVR would be required to provide

his legally qualified opponents with free air time for all his appearances as

a news reporter. Branch fails to mention, however, that it is possible for a

Station to seck a waiver or partial waiver from the opposing candidates of

their "equal opportunities” rights where on-the-air employees of a station

have become candidates for public office. See Senate Committee on

Commerce, 40 FCC 357 (1962); Licensee Obligations in Political

Campaigns, 14 FCC 2d 765 (1968). Such waivers would generally be

binding as long as they were’ given with full knowledge of the relevant

facts concerning the broadcasts. WBTW-TV, 5 FCC 2d 479 (1966).

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C. REQUEST TO MODIFY INTERPRETATION OF SECTION 315

6. Branch also requests that the Commission modify its

present interpretation of Section 315 and thus treat appearances

by news reporters/candidates as exempt. Branch contends that

the legislative history of the 1959 amendments Clearly indicates

that Congress did not intend for such appearances to be subject

to "equal opportunties". In this regard, Branch asserts that it is

"ironic" that in Newscaster Candidacy the Commission found

the appearance of an employee newscaster to be a "use," but at

the same time the Commission recognized the 1959 amendments

were designed to encourage news coverage. To this effect,

Branch cites Newscaster Candidacy where the Commission

stated:

Thus the main purpose of the amendment was to

allow greater freedom to the broadcaster in

reporting news to the public, that is to say, in

inserting appearances of candidates as part of the

contents of news programs. [Newscaster

Candidacy, 40 FCC at 434.]

7. In light of the previously cited legislative history, supra,

par. 3, it is clear that when a candidate appears on the air in the

capacity of a news reporter, that appearance is not the type

which Congress intended to exempt from the "equal

opportunties” provision of Section 315. A news reporter, by

the very nature of his position, may initiate and control his on-

the-air apppearances and is not the subject of the news

program. These are precisely the types of activities that

Congress identified as being inappropriate for a candidate to

participate in when performed in conjunction with his

appearance on an exempt program. Therefore, where a legally

qualified candidate for public office appears on a bona fide

newscast in the capacity of a news reporter, rather than as the

subject of the news, such appearances are subject to the “equal

opportunities" requirement of Section 315. Newscaster

Candidacy, supra; See generally, Henry Geller, 95 FCC 2d

1236 (1983), aff'd sub nom. League of Women Voters

Education Fund v. FCC, 731 F.2d 995 (D.C. Cir. 1984). To

43a

conclude otherwise, would be inconsistent with Congress’

basic objective for enacting Section 315 -- to prevent a legally

qualified candidate from gaining an advantage over an opponent

through favoritism or gaining access to a broadcast facility. S.

~ Rep. No. 562, 86th Cong., Ist Sess. 8-9 (1959); Paulsen v.

FCC, supra.. The Paulsen court agreed that the exposure

which a candidate receives from any television appearance may

render an invaluable advantage to his election campaign. In this

regard, the court stated:

A candidate who becomes well-known to the public

as a personable and popular individual through

"nonpolitical" appearances certainly holds an

advantage when he or she does formally discuss

political issues to the same public over the same

media. [Paulsen v. FCC, 491 F.2d at 891].

8. In view of the foregoing, and pursuant to Section 1.2 of

the Commission's rules and regulations, the request for

declaratory ruling IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. TRICARICO, SECRETARY

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