538 F.2d 349 (D.C. Cir. 1976), 75-1951, Chisholm v. F. C. C.

Docket Nº:75-1951, 75-1994.
Citation:538 F.2d 349
Party Name:The Honorable Shirley CHISHOLM et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., et al., Intervenors. DEMOCRATIC NATIONAL COMMITTEE, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Company, Inc., and Radio Television News
Case Date:April 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 349

538 F.2d 349 (D.C. Cir. 1976)

The Honorable Shirley CHISHOLM et al., Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

CBS, Inc., et al., Intervenors.

DEMOCRATIC NATIONAL COMMITTEE, Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

American Broadcasting Company, Inc., and Radio Television

News Directors Association, Intervenors.

Nos. 75-1951, 75-1994.

United States Court of Appeals, District of Columbia Circuit

April 12, 1976

Argued Nov. 26, 1975.

Rehearing Denied May 13, 1976.

Page 350

Harvey J. Shulman, Washington, D. C., with whom Collot Guerard, Washington, D. C., was on the brief for petitioners in No. 75-1951.

Marcus Cohn, Washington, D. C., with whom Robert N. Smith, Martin J. Gaynes and Sheldon S. Cohen, Washington, D. C., were on the brief for petitioner in No. 75-1994.

Werner K. Hartenberger, Deputy Gen. Counsel, F. C. C., with whom Ashton R. Hardy, Gen. Counsel, Daniel M. Armstrong, Acting Associate Gen. Counsel, Stephen A. Sharp, Counsel, F. C. C., B. Barry Grossman and Lee I. Weintraub, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents.

Timothy B. Dyk, Washington, D. C., with whom J. Roger Wollenberg and Daniel Marcus, Washington, D. C., were on the brief for intervenor CBS Inc., Joel Rosenbloom, Washington, D. C., and Richard D. Paisner also entered appearances for intervenor CBS, Inc.

James A. McKenna, Jr., Thomas N. Frohock, Washington, D. C., and John J. Smith, Washington, D. C., were on the brief for intervenor American Broadcasting Companies, Inc.

Corydon B. Dunham and Howard Monderer, Washington, D. C., were on the brief for intervenor National Broadcasting Company, Inc.

J. Laurent Scharff, Washington, D. C., was on the brief for intervenor Radio Television News Directors Association.

Ellen Show Agress and Earle K. Moore, New York City, were on the brief for intervenor Office of Communication of the United Church of Christ, et al.

Henry Geller, Washington, D. C., filed a brief on behalf of Aspen Institute Program as amicus curiae urging affirmance.

Kenneth J. Guido, Jr., Washington, D. C., filed a brief on behalf of Common Cause as amicus curiae urging affirmance.

Stephen I. Schlossberg, Detroit, Mich., entered an appearance for intervenor, International

Page 351

Union United Automobile, Aerospace and Agricultural Implement Workers of America.

Henry Geller, Washington, D. C., entered an appearance for the League of Women Voters of the United States as amicus curiae.

Before WRIGHT, TAMM and WILKEY, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM with whom Circuit Judge WILKEY concurs.

Dissenting opinion filed by Circuit Judge WRIGHT.

TAMM, Circuit Judge:

I. INTRODUCTION AND BACKGROUND

This case concerns perhaps the most important interpretation of the equal time provision of the Communications Act of 1934, 47 U.S.C. § 315(a), 1 which has arisen in the past decade. Petitioners, the Democratic National Committee ("DNC"), the National Organization for Women ("NOW"), and Representative Shirley Chisholm, ask us to review various aspects of a Memorandum Opinion and Order 2 of the Federal Communications Commission (hereinafter "FCC" or "Commission") reversing a statutory interpretation of over ten years' duration and holding that, henceforth, debates between qualified political candidates initiated by nonbroadcast entities (non-studio debates) and candidates' press conferences will be exempt from the equal time requirements of Section 315, provided they are covered live, based upon the good faith determination of licensees that they are "bona fide news events" 3 worthy of presentation, and provided further that there is no evidence of broadcaster favoritism. Our review of the legislative history surrounding passage of the "bona fide news event" exemption reveals that it is inconclusive as to whether Congress intended for these particular formats to be included, although we find substantial support for the Commission's new interpretation in the broad Congressional policies behind passage of the exemption increasing broadcaster discretion and encouraging greater coverage of political news and in the discretion granted the Commission in interpreting and applying the amendment to particular program formats. We therefore defer to the Commission's interpretation of the Act it is charged with administering. We also conclude that the Commission has properly exercised its discretion in accomplishing the reversal via declaratory order rather than through notice and comment rulemaking.

  1. General Factual and Legislative Background

    Section 315, as originally enacted and interpreted, had imposed upon broadcasters a duty of absolute equality of treatment of competing political candidates in the "use" of broadcast facilities, stating:

    (a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate.

    47 U.S.C. § 315(a).

    For a number of years the FCC interpreted the equal time provision as inapplicable to the appearance of a candidate on a newscast, reasoning that such an appearance did not constitute a "use" of the broadcast facility

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    insofar as the candidate did not directly or indirectly initiate the filming or presentation of the event. See, e. g., Allen H. Blondy, 40 FCC 284, 14 P & F Radio Reg. 1199 (1957). This interpretation became embodied in the Commission's official release of October 6, 1958, entitled "Use of Broadcast Facilities by Candidates for Public Office." Public Notice FCC 58-936, III-12; 105 Cong.Rec. 14459 (1959).

    In 1959, however, the Commission effected a radical departure from its prior interpretation in the so-called "Lar Daly" case, Columbia Broadcasting System (Lar Daly), 18 P & F Radio Reg. 238, reconsideration denied, 26 FCC 715, 18 P & F Radio Reg. 701 (1959), and interpreted the statute to mean that the equal time rule applied even to the appearance of a candidate on a regularly scheduled newscast. 4 The Commission's position on this matter created a national furor, and it was feared that its strict application of the equal opportunities provision "would tend to dry up meaningful radio and television coverage of political campaigns." S.Rep. No. 562, 86th Cong., 1st Sess. 10 (1959), U.S.Code Cong. & Admin.News 1959, pp. 2564, 2572. 5 This concern led Congress to conclude that the concept of absolute equality among competing political candidates would have to give way, to some extent, to two other "worthy and desirable" objectives:

    First, the right of the public to be informed through broadcasts of the political events; and Second, the discretion of the broadcaster to be selective with respect to the broadcasting of such events.

    Hearings on Political Broadcasts Equal Time Before the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. 2 (1959) (comment of Chairman Harris).

    Pursuant to these objectives, Congress amended Section 315(a) on September 4, 1959, to add the following exemptions:

    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), 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 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.

    P.L. 86-274, § 1, 73 Stat. 557, amending 47 U.S.C. § 315.

    Thus armed with a not-so-clear Congressional directive generally exempting news broadcasting from Section 315's equal time

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    requirements, the Commission set forth to apply the news coverage exemptions to specific kinds of events and coverage. In The Goodwill Stations, Inc. (WJR), 40 FCC 362, 24 P & F Radio Reg. 413 (1962), the Commission ruled that a radio broadcast of a debate sponsored by the Detroit Economic Club between the two major Michigan gubernatorial candidates, part of a regular series of broadcasts of Economic Club luncheons, failed to qualify for exemption under Section 315(a)(4) as "on-the-spot coverage of bona fide news events . . . ." Ten days later, the Commission held in National Broadcasting Co. (Wyckoff), 40 FCC 370, 24 P & F Radio Reg. 401 (1962), that a debate at the annual UPI convention featuring the two major California gubernatorial candidates could not qualify under the bona fide news event exemption. These two decisions, read together, effectively excluded all debates from the Section 315(a)(4) exemption. Two years later, the Commission ruled in response to a network's request that the broadcast of a press conference held by an incumbent President who is a candidate for reelection, or by a non-incumbent candidate for President, is a non-exempt "use" of the broadcast facility within the meaning of Section 315. Columbia Broadcasting System, Inc., 40 FCC 395, 3 P & F Radio...

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