National Citizens Committee for Broadcasting v. F.C.C.
| Decision Date | 11 November 1977 |
| Docket Number | 76-1351 and 76-1360,Nos. 74-1700,s. 74-1700 |
| Citation | 567 F.2d 1095,186 U.S.App.D.C. 102 |
| Parties | , 3 Media L. Rep. 1273 NATIONAL CITIZENS COMMITTEE FOR BROADCASTING and Friends of the Earth, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc. (ABC), CBS, Inc., Intervenors. COMMITTEE FOR OPEN MEDIA, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Council on Economic Priorities and United Farm Workers of America and Henry Geller, Intervenors. COUNCIL ON ECONOMIC PRIORITIES, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, United Farm Workers of America, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Tracy Westen, Washington, D.C., with whom Geoffrey Cowan, Los Angeles, Cal., was on the brief, for petitioners in No. 74-1700.
Charles M. Firestone, Washington, D.C., with whom Frank W. Lloyd, III, Washington, D.C., was on the brief, for petitioner in No. 76-1351.
Harvey J. Shulman and Collot Guerard, Washington, D.C., with whom Carol J. Jennings, Washington, D.C., was on the brief, for petitioner in No. 76-1360 and intervenors, Council on Economic Priorities and United Farm Workers of America, AFL-CIO in No. 76-1351.
C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., and Robert B. Nicholson, Atty., Dept. of Justice, Washington, D.C., were on the brief, for respondents. Ashton R. Hardy, Gen. Counsel, F.C.C., Washington, D.C., at the time the record was filed, entered an appearance for respondent F.C.C. Joseph A. Marino, and John E. Ingle, and Stephen A. Sharp, Counsel, F.C.C., Washington, D.C., also entered appearances for respondent F.C.C. Carl D. Lawson and Barry Grossman, Attys., Dept. of Justice, Washington, D.C., entered appearances for respondent United States of America.
Joel Rosenbloom, Washington, D.C., with whom J. Roger Wollenberg, Stephen A. Weiswasser, Michael S. Schooler, and Donald C. Langevoort, Washington, D.C., were on the brief, for intervenor CBS, Inc. in No. 74-1700 also argued for intervenor American Broadcasting Companies, Inc.
Henry Geller, Washington, D.C., for intervenor, Henry Geller in No. 76-1351.
James A. McKenna, Jr. and Carl R. Ramey, Washington, D.C., were on the brief for intervenor, American Broadcasting Companies, Inc. in No. 74-1700.
Before WRIGHT, McGOWAN and TAMM, Circuit Judges.
Opinion for the Court filed by McGOWAN, Circuit Judge.
These three consolidated petitions for review challenge various aspects of the Federal Communications Commission's Fairness Report. That Report was the product of an inquiry by the FCC, extending five years from its initiation in 1971, the issuance of the Report in 1974, and the denial of reconsideration in 1976, into the policies underlying the fairness doctrine and their implementation. It was the first such sustained review since the doctrine was originally articulated by the Commission nearly thirty years ago; and it was a proceeding in which written comments were received from over 120 persons or organizations, with eighty participants in a week-long series of panel discussions and oral arguments held by the FCC in 1972.
For the reasons hereinafter appearing, we leave undisturbed the Report itself, including its central determination to withhold application of the fairness doctrine to broadcast communications promoting the sale of commercial products. Our remand to the FCC, however, is with directions to pursue further inquiry into two of the alternative courses of action proposed by some of the petitioners as ways by which the general objectives giving rise to the fairness doctrine can be realized.
The fairness doctrine, which is not identified in terms in the statutes administered by the FCC, had its inception in 1949. 1 The Notice of Inquiry initiating the reexamination, 30 F.C.C.2d 26 (1971), stated that the ensuing investigation would center around four major topics:
1. The fairness doctrine generally;
2. Application of the fairness doctrine to broadcast of paid announcements 3. Access to broadcast media for discussion of public issues; and
4. Application of the fairness doctrine to political broadcasts.
The issues considered on this appeal relate to all but the last of these topics, which was the subject of a separate report issued in 1972. 2
In No. 74-1700, petitioners National Citizens Committee for Broadcasting (NCCB) and Friends of the Earth, and petitioner Council of Economic Priorities (CEP), in No. 76-1360, object to the decision in the Fairness Report not to apply the fairness doctrine to ordinary product advertisements, and further contend that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (1970 & Supp. V 1975), requires the Commission to apply the fairness doctrine to advertisements for environmentally dangerous products. 3
In No. 76-1351, petitioner Committee for Open Media (COM) challenges the Commission's failure, on reconsideration of the Fairness Report, to adopt, or order further inquiry into, its access proposal as an alternative to current fairness doctrine enforcement. Also in No. 76-1351, intervenor Henry Geller challenges the Commission's decisions to continue case-by-case consideration of fairness doctrine complaints, and its failure to consider and adopt his "10-issue" proposal relating to the fairness doctrine requirement that a broadcaster devote a reasonable amount of time to coverage of public issues. 4
Because the fairness doctrine and its application have been the subject of extensive commentary in prior decisions of both this court 5 and the Supreme Court, 6 we do not consider it necessary in this opinion to delve into these matters beyond the extent to which they directly impinge on the issues now before us. Similarly, we shall not comment upon those parts of the Fairness Report and order denying reconsideration which are not challenged on these appeals except to the extent they cannot be disentangled from the particular questions we confront.
Accordingly, we shall first consider, in Part II hereof, the challenges to the Commission's decisions with respect to the reach of the fairness doctrine. Part III of the opinion will address the specific contentions concerning the manner of enforcement of the fairness doctrine.
The Fairness Report concludes that the fairness doctrine should not be applied to broadcast advertisements promoting the sale of a commercial product. This decision was made with a conscious awareness that it represents a marked shift from previous FCC policy. That previous policy, which was developed in a series of ad hoc decisions by the Commission and the courts, was never subject to precise articulation or definition, leading to uncertainty and difficulties in achieving full and fair enforcement. While we are under no illusion that the new policy, described more fully below, will solve all or perhaps even most of the implementation problems encountered heretofore, we believe that we are without warrant to deny the Commission the opportunity to attempt a new resolution of those difficulties provided that its action is consistent with constitutional and statutory commands and is otherwise in accordance with standards governing such an exercise of agency discretion. Our function in reviewing the validity of the Commission's decision to reverse its previous course of action is to ensure that it has
provide(d) an opinion or analysis indicating that the (previous) standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law. 7
This standard is a distillation of the general criteria governing judicial review of an exercise of agency discretion in the context of informal rulemaking such as that before us. Our
responsibility is to assure that the agency has not abused or exceeded its authority, that every essential element of the order is supported by substantial evidence, and that the agency has given reasoned consideration to the pertinent factors. 8
The basic principles of the fairness doctrine were established long before the doctrine was given a label: broadcast licensees are obliged both to cover controversial issues of public importance and to broadcast opposing points of view on them. 9 The Commission and petitioners disagree as to when it became FCC policy to apply these obligations to ordinary commercial advertising. In a decision rendered in 1946, the Commission noted that fairness principles could be applicable to product advertisements if the latter involved controversial public issues. 10 The FCC's first comprehensive statement of the fairness doctrine in 1949 did not mention its applicability to product commercials, although the statement did refer approvingly to the FCC's 1946 decision. 11
Whether or not these statements nearly three decades ago can be said to have established a policy of subjecting commercial advertisements to fairness requirements, it is undeniable that any such policy lay practically dormant until 1967. 12 In that year the Commission held in WCBS-TV, 8 F.C.C.2d 381, upon reconsideration, 9 F.C.C.2d 921, that cigarette commercials raised the controversial and publicly important issue of whether smoking is desirable, and thus gave rise to the second obligation of the fairness doctrine. 13 In Banzhaf v. FCC this court affirmed the Commission's authority to apply the fairness doctrine to cigarette advertisements. 14 In so doing, we recognized the unique danger to health posed by cigarettes but did not in terms foreclose the possibility that the Commission would be obliged to follow the cigarette precedent with respect to other product advertisements raising controversial issues of...
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