Arkansas AFL-CIO v. F.C.C.

• Decision Date: 07 December 1993
• Docket Number: No. 92-1115,KARK-TV,AFL-CIO,92-1115
• Parties: , 22 Media L. Rep. 1001 ARKANSAS, and the Committee Against Amendment 2, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Radio-Television News Directors Association;; National Association of Broadcasters; CBS, Inc., Intervenors.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1430

11 F.3d 1430

62 USLW 2381, 22 Media L. Rep. 1001

ARKANSAS AFL-CIO, and the Committee Against Amendment 2, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Radio-Television News Directors Association; KARK-TV National Association of Broadcasters; CBS, Inc. Intervenors.

No. 92-1115.

United States Court of Appeals Eighth Circuit.

Submitted June 8, 1993.

Decided Dec. 7, 1993.

Andrew Schwartzman, Washington, DC, argued, for committee against AFL-CIO.

Timothy B. Dyk, Washington, DC, argued, for intervenor CBS. (Gigi B. Sohn, on brief), for petitioners.

Daniel M. Armstrong, Associate General Counsel, F.C.C., Washington, DC, argued (Robert L. Pettit and C. Grey Pash, Jr., on brief), for respondents.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS S. ARNOLD, Circuit Judges.

BEAM, Circuit Judge, with whom FLOYD R. GIBSON, Senior Circuit Judge, BOWMAN, MAGILL and LOKEN, Circuit Judges, join.

This appeal arises from the Federal Communications Commission's ("FCC") refusal to apply the fairness doctrine to KARK-TV ("KARK" ¹). The FCC ruled that the fairness doctrine was not statutorily mandated, and was no longer in the public interest. Based on this determination, the FCC dismissed a fairness doctrine complaint filed by the Arkansas AFL-CIO and The Committee Against Amendment 2 (collectively "Committee"). A panel of this court affirmed. Arkansas AFL-CIO v. FCC, 980 F.2d 1190 (8th Cir.1992) (Gibson, J., dissenting). We granted the Committee's suggestion for rehearing en banc and vacated the panel opinion. Arkansas AFL-CIO v. FCC, 980 F.2d 1197 (8th Cir.1993). We now affirm the decision of the FCC.

I. HISTORICAL BACKGROUND

The history of the fairness doctrine is not in dispute in this case and was thoroughly discussed in the panel opinion. Therefore, we briefly summarize the relevant background here.

The Radio Act of 1927, and its successor, the 1934 Communications Act, created a system under which the FCC grants licensees exclusive control of publicly owned frequencies. As a condition of their licenses, these licensees are required to operate their stations in the "public interest." See 47 U.S.C. Secs. 303, 307, 309, 315 (1991). The FCC is charged with the enforcement of the statute, including the requirement that licensees operate in the public interest.

The drafters of the 1927 Radio Act considered giving common carrier status to broadcast licensees, thereby requiring them to provide access to all on equal terms. This proposal was ultimately withdrawn, and there is no dispute that broadcasters are not common carriers. See Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 105, 93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973). In 1929, in Great Lakes Broadcasting Co., the Radio Commission articulated its interpretation of "operation in the public interest" as requiring that a licensee provide:

ample play for the free and fair competition of opposing views and the Commission believes that the principle applies ... to all discussions of issues of importance to the public.

Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 33 (1929), rev'd on other grounds, 37 F.2d 993 (D.C.Cir.), cert. denied, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930). Over time, this interpretation developed into the fairness doctrine, and became an integral part of the FCC's interpretation of its mandate. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949) (germinal statement of the fairness doctrine). The fairness doctrine consisted of a two-pronged obligation: the broadcaster must give adequate coverage to public issues, and that coverage must accurately reflect opposing views on the issues. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 377, 89 S.Ct. 1794, 1799, 23 L.Ed.2d 371 (1969) (upholding the constitutionality of the fairness doctrine).

In 1959, Congress amended section 315 of the Communications Act in response to an FCC decision, Lar Daly, 26 F.C.C. 715 (1959). In Lar Daly, the FCC ruled that any appearance on the airwaves by a candidate for political office triggered the equal time provision of section 315. ² Fearing that such a rule would render ordinary news coverage impossible, Congress amended section 315 to exempt certain routine news events from the equal time provision. As part of that amendment, Congress also added the proviso:

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.

47 U.S.C. Sec. 315(a). Interpretation of this proviso is at the heart of the controversy now before the court.

From 1959 until 1981, the FCC consistently interpreted the 1959 amendment to section 315 as codifying the fairness doctrine and, therefore, treated the fairness doctrine as a part of the Communications Act. See, e.g., Letter to Oren Harris, 40 F.C.C. 582, 583 (1963); Obligations of Broadcast Licensees under the Fairness Doctrine, 23 F.C.C.2d 27, 28 (1970); 1974 Fairness Report, 48 F.C.C.2d 1, 2-9 (1974). In 1981, in response to perceived changes in the broadcasting industry, the FCC recommended that Congress amend section 315(a) to repeal the fairness doctrine. FCC News Release Report No. 5068 (September 17, 1981). Congress, however, did not take the requested action. In 1985, the FCC issued a Fairness Report which cast doubt on the continued constitutional validity of the fairness doctrine. That report also suggested that the longstanding assumption that the 1959 amendment codified the fairness doctrine was erroneous.

In 1986, the D.C. Circuit ruled that the 1959 amendment to section 315(a) had, in fact, not codified the fairness doctrine. Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, rehearing en banc denied, 806 F.2d 1115 (D.C.Cir.1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987) ("TRAC "). The FCC subsequently purported to abolish the fairness doctrine on the grounds that it no longer served the public interest and that it violated the First Amendment. Syracuse Peace Council v. WTVH, 2 F.C.C.Rcd. 5043 (1987). Deferring to the FCC's determination that the fairness doctrine no longer served the public interest, the D.C. Circuit affirmed. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). In doing so, the D.C. Circuit found that the actions of the FCC were not arbitrary or capricious, and did not constitute an abuse of agency discretion. Id. at 669.

II. PROCEDURAL HISTORY

The proceedings before the FCC in this case, In re complaint of The Arkansas AFL-CIO and The Committee Against Amendment 2 against Television Station KARK-TV, Little Rock, Arkansas, FCC No. 91-434 (released January 6, 1992), arose from a dispute about coverage of a ballot issue voted upon by the people of Arkansas in November, 1990. The Committee filed a complaint with the FCC alleging that KARK-TV was violating the fairness doctrine in its coverage of the Amendment 2 ballot issue.

In a 3-2 ruling, the FCC dismissed the Committee's complaint. Relying on TRAC, the FCC reiterated its conclusion that section 315 of the Communications Act of 1934 did not codify the fairness doctrine. The FCC further stated that the fairness doctrine had been repealed in Syracuse Peace Council. After conducting an independent analysis of the statutory construction issue, a panel of this court affirmed the decision of the FCC, albeit on different grounds. The Committee moved for rehearing en banc under Fed.R.App.P. 35(a). The FCC also requested rehearing en banc.

The posture of the case now before us en banc is somewhat confusing. To the panel, the FCC defended its decision to dismiss the Committee's complaint on the grounds that the 1959 amendment unambiguously did not codify the fairness doctrine and that the FCC had abolished the doctrine in Syracuse Peace Council. The panel concluded that the language of the 1959 amendment was facially ambiguous, but that the legislative history made it clear that Congress had not intended to codify the fairness doctrine. Therefore, the panel found that the FCC properly concluded that the 1959 amendment had not codified the fairness doctrine. To the en banc court, the FCC abandoned its argument that the 1959 amendment clearly and unambiguously did not codify the fairness doctrine. The FCC now argues that the United States Supreme Court holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) mandates a remand of the case to permit the FCC to reconsider its decision in light of the panel's statutory interpretation. Since the Committee also contends that remand is required under Chevron, the FCC moved for a realignment of the parties. We granted that motion.

III. DISCUSSION

The Committee raises two issues for en banc review. First it contends that the 1959 amendment clearly and unambiguously codified the fairness doctrine. In the alternative, the Committee argues that Chevron dictates that this case be remanded to the agency. The FCC joins the Committee in this second argument and urges us to remand the case for reconsideration in light of the panel's statutory interpretation. KARK argues for affirmance and also suggests that the case should be dismissed as moot.

The FCC decided two different issues in the case before it: (a) whether the fairness doctrine was codified, and (b) if not, whether the elimination of the fairness doctrine was an appropriate exercise of the FCC's discretion...