593 F.2d 1102 (D.C. Cir. 1978), 76-1081, Community-Service Broadcasting of Mid-America, Inc. v. F. C. C.

Docket Nº:76-1081.
Citation:593 F.2d 1102
Party Name:COMMUNITY-SERVICE BROADCASTING OF MID-AMERICA, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Case Date:August 25, 1978
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1102

593 F.2d 1102 (D.C. Cir. 1978)

COMMUNITY-SERVICE BROADCASTING OF MID-AMERICA, INC., et al.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

No. 76-1081.

United States Court of Appeals, District of Columbia Circuit

August 25, 1978

Page 1103

As Amended Sept. 29, 1978.

Argued En Banc Jan. 6, 1978.

Syllabus by the Court

Petitioners, a number of noncommercial educational broadcast stations, challenge the constitutionality on First and Fifth Amendment grounds of Section 399(b) of the Communications Act, 47 U.S.C. § 399(b) (Supp. V 1975), and the rules promulgated thereunder by the Federal Communications Commission, Report and Order, Docket 19861, 57 FCC2d 19 (December 19, 1975). These provisions require all noncommercial educational radio and television stations which receive any federal funding under the authority of the Communications Act to make audio recordings of all broadcasts "in which any issue of public importance is discussed." 47 U.S.C. § 399(b). The broadcaster is required to retain the audio recordings for 60 days, and must provide a copy to any member of the Commission who requests one and to any member of the public who makes such a request and pays reasonable costs. Held: Section 399(b) and the Commission regulations thereunder are invalid under the Fifth Amendment because they deny petitioners the equal protection of the laws. 192 U.S.App.D.C., at ---- - ----, 593 F.2d at 1122-1123.

(a) Where a classification drawn by government is not invidious and does not affect fundamental rights, it will ordinarily withstand equal protection scrutiny so long as it is rationally related to a legitimate governmental interest. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). But where, as in the present case, fundamental rights are involved, stricter scrutiny is required. Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Therefore, if Section 399(b)'s recording requirement is to be upheld, it must be shown that its application to noncommercial broadcasters and not to commercial broadcasters furthers a "substantial" governmental interest and that it is "narrowly tailored" to serve that interest. 192 U.S.App.D.C., at ----, 593 F.2d at 1122.

(b) None of the purposes put forward to support the recording requirement ade

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quately justifies the distinction drawn between commercial and noncommercial broadcasters. As a result, the statute and regulations are unconstitutional. 192 U.S.App.D.C. at ----, 593 F.2d at 1123.

Petition for Review of an Order of the Federal Communications Commission.

Richard D. Marks, Washington, D. C., with whom Daniel W. Toohey, Washington, D. C., was on brief, for petitioners. Patrick M. Connolly, Washington, D. C., also entered an appearance for petitioners.

C. Grey Pash, Jr., Counsel, F. C. C., Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel for the F. C. C., Washington, D. C., at the time the briefs were filed, Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., and Lee I. Weintraub, Atty., Dept. of Justice, Washington, D. C., were on brief, for respondents. Carl D. Lawson, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondents.

Marc I. Steinberg and H. Stephen Holloway, Washington, D. C., United States Senator Robert Griffin urging constitutionality.

Theodore D. Frank, Washington, D. C., filed a brief on behalf of amicus curiae Public Broadcasting Service urging unconstitutionality.

James L. McHugh, Jr., Washington, D. C., filed a brief on behalf of amicus curiae Corp. for Public Broadcasting urging unconstitutionality.

Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

Chief Judge, J. SKELLY WRIGHT, filed the opinion of the court (Parts I and IV), in which Circuit Judges, BAZELON, McGOWAN, ROBINSON, and WILKEY, joined. Circuit Judge, WILKEY, also joined in Parts II, III and V. Circuit Judges BAZELON and SPOTTSWOOD W. ROBINSON, III, filed opinions concurring in part.

Circuit Judge, LEVENTHAL, joined by Circuit Judge, TAMM, filed a dissenting opinion.

Circuit Judge, MacKINNON, joined by Circuit Judge, ROBB, filed a dissenting opinion.

On Rehearing En Banc

J. SKELLY WRIGHT, Chief Judge:

This case involves Section 399(b) of the Communications Act, 47 U.S.C. § 399(b) (Supp. V 1975), and the rules promulgated thereunder by the Federal Communications Commission, Report and Order, Docket 19861, 57 FCC2d 19 (December 19, 1975). These provisions require all noncommercial educational radio and television stations 1 which receive any federal funding under the authority of the Communications Act to make audio recordings of all broadcasts "in which any issue of public importance is discussed." 2 The licensee must retain the audio recording for 60 days, and must provide

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a copy to any member of the Federal Communications Commission who requests one, or to any member of the public within seven days of receiving a request and payment of reasonable costs. 3

Petitioners here, a number of noncommercial educational broadcast stations, challenge the constitutionality of these requirements, arguing that Section 399(b) and the rules promulgated by the FCC to enforce it violate the First and Fifth Amendments of the Constitution. We agree. We hold that Section 399(b) of the Communications Act places substantial burdens on noncommercial educational broadcasters and presents the risk of direct governmental interference in program content. Since no substantial governmental interest has been shown on the other side of the constitutional balance, the statute and rules at issue are unconstitutional. 4

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I

The significance and function of Section 399(b) cannot be understood apart from the larger scheme of federal involvement in noncommercial broadcasting. It is to this system that we turn first, in order to place the requirement under review here in its proper context.

Public broadcasting dates back at least to 1919 when Radio Station 9XM began broadcasting from the University of Wisconsin. 5 In 1939 the FCC first reserved certain space on the radio spectrum for educational radio, 6 and in 1952 frequencies were reserved for public television as well. 7 It was not until 1962, however, that the federal government became involved in a direct funding program for public broadcasting, and even that program was limited to construction of station facilities.

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The Educational Television Broadcasting Facilities Act, 8 passed in 1962, authorized a total of 32 million dollars to be spent on public television over a five-year period. 9 Under the Act the Secretary of Health, Education, and Welfare distributes funds for acquisition of physical equipment necessary for television transmission, subject to a local matching requirement and a per-state limitation on funding. Money received under these provisions may be used only for equipment, not for salaries, operating expenses, or program production.

Five years later the Carnegie Commission on Educational Television completed its landmark study of public broadcasting. Its report, Public Television: A Program for Action, found that noncommercial television stations were in need of far greater financial support above and beyond the existing reservation of frequencies by the FCC and the facilities grant program administered by HEW if they were to realize their full potential. While the Carnegie Commission recognized an important role for state and local governments and private sources in funding public television stations, it concluded that federal support of operations and programming was essential to raising the significantly larger sums of money necessary for an effective system of public television. Carnegie Commission on Educational Television, Public Television: A Program for Action 33-35 (1967). The Commission then focused on the means for providing this federal funding:

Because we contemplate federal assistance to Public Television on a far larger scale than at present, the pressing need arises to identify the manner in which federal funds will flow to the system. There is at once involved the relation between freedom of expression, intimately and necessarily a concern of Public Television, and federal support.

Recognizing areas of special sensitivity, the Commission is persuaded that a nongovernmental institution is necessary to receive and disburse at least a part of those funds. The purpose is not to escape scrutiny but to minimize the likelihood that such scrutiny will be directed toward the day-to-day operations of the sensitive program portions of the Public Television system. * * *

Id. at 36-37 (emphasis added).

The Carnegie Commission's recommendation that federal financial support of programming and operations be provided through a Corporation for Public Broadcasting (CPB) was adopted by Congress in the Public Broadcasting Act of 1967. In its declaration of policy contained in this Act Congress found "that a private corporation should be created to facilitate the development of educational radio and television broadcasting and to afford maximum protection to such broadcasting from extraneous interference and control." 47 U.S.C. § 396(a)(6) (1970). CPB, a nonprofit District of Columbia corporation, was established to serve this purpose. Id. § 396(b). Under the Act CPB is governed by a 15-member Board of Directors, appointed by the President subject to confirmation by the Senate, no more than eight of whom may be members of the same political party. Id. § 396(c)(1). The Board is authorized to disburse funds it receives to program production...

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