Accuracy in Media, Inc. v. F. C. C.
| Decision Date | 16 October 1975 |
| Docket Number | No. 74-1028,74-1028 |
| Citation | 521 F.2d 288,172 U.S.App.D.C. 188 |
| Parties | ACCURACY IN MEDIA, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, The Corporation For Public Broadcasting, the Public Broadcasting Service, theUniversity of Maine, et al., Educational Broadcasting Corporation, Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Daniel Manelli, for petitioner. Stanley H. Kamerow, Washington, D. C., was on the brief for petitioner. Thomas F. Rogan and Milton Mitchell also entered appearances for petitioner.
C. Grey Pash, Jr., Counsel, F.C.C., for respondents. Ashton R. Hardy, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, John E. Ingle, Counsel, F.C.C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the brief for respondents. John W. Pettit, Gen. Counsel, F.C.C., at the time the record was filed, entered an appearance for respondents.
James L. McHugh, Jr., Washington, D. C., with whom Randolph J. May, Washington, D. C., was on the brief for intervenor, The Corporation for Public Broadcasting. Richard M. Schmidt, Jr., Washington, D. C., also entered an appearance for intervenor The Corporation for Public Broadcasting.
Theodore D. Frank, Washington, D. C., with whom Eric H. Smith, Harry M. Plotkin and Ronald A. Cass, Washington, D. C., were on the brief for intervenor Public Broadcasting Service.
Richard D. Marks, Washington, D. C., with whom Daniel W. Toohey, Washington, D. C., was on the brief for intervenor, The University of Maine, and others.
Vernon L. Wilkinson, Washington, D. C., entered an appearance for intervenor, Educational Broadcasting Corp.
Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and WEIGEL, * United States District Judge for the Northern District of California.
Opinion for the Court filed by Chief Judge BAZELON.
Accuracy in Media, Inc. (AIM) filed two complaints with the FCC against the Public Broadcasting Service (PBS) concerning two programs distributed by PBS to its member stations. AIM alleged that the programs, dealing with sex education and the American system of criminal justice, were not a balanced or objective presentation of each subject and requested the FCC to order PBS to rectify the situation. The legal basis for AIM's complaints was the Fairness Doctrine 1 and 47 U.S.C. § 396(g)(1)(A) (1970). On its initial hearing of the matter, the FCC concluded that the PBS had not violated the Fairness Doctrine and invited comments from interested parties on its authority to enforce whatever standard of program regulation was contained in § 396(g)(1)(A). 2 AIM does not seek review of the Commission's decision on the Fairness Doctrine issue.
Section 396(g)(1)(A) is part of the Public Broadcasting Act of 1967, an act which created the Corporation for Public Broadcasting (CPB) and authorized it to fund various programming activities of local, non-commercial broadcasting licensees. 3 Section 396(g)(1)(A) qualifies that authorization in the following language:
In order to achieve the objectives and to carry out the purposes of this subpart, as set out in subsection (a) of this section, the Corporation is authorized to
(A) facilitate the full development of educational broadcasting in which programs of high quality, obtained from diverse sources, will be made available to noncommercial educational television or radio broadcast stations, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature. . . .
AIM contends that since the above-mentioned PBS programs were funded by the CPB, pursuant to this authorization, the programs must contain "strict adherence to objectivity and balance", a requirement AIM contends is more stringent than the standard of balance and fairness in overall programming contained in the Fairness Doctrine. 4 AIM alleges that the two relevant programs did not meet this more stringent standard of objectivity and balance.
After consideration of the comments received on the matter, invited in its preliminary decision discussed above, the Commission concluded that it had no jurisdiction to enforce the mandate of § 396(g)(1)(A) against CPB. 5 Having reached this result, the Commission thought it inappropriate to comment on what standard of program regulation was established by § 396(g)(1)(A) and whether that standard was more stringent than the Fairness Doctrine. The Commission did not explicitly consider whether the standard of § 396(g)(1)(A), whatever that standard might be, could be enforced against individual noncommercial licensees under the traditional jurisdictional grants contained in the Federal Communications Act. AIM petitions for review of the Commission's decision arguing that the Commission wrongly concluded that it had no jurisdiction to enforce the mandate of § 396(g)(1)(A) against CPB. We affirm the Commission's decision and deny the petition for review. After describing in Part I the present system of public broadcasting, we conclude in Part II for essentially the same reasons advanced by the Commission that the Commission does not have jurisdiction to enforce the mandate of § 396(g)(1)(A) against the CPB.
Resolution of the issues raised by AIM's petition requires an understanding of the operation of the public broadcasting system. There are three tiers to this operation, each reflecting a different scheme of governmental regulation. The basic level is comprised of the local, noncommercial broadcasting stations that are licensed by the FCC 6 and, with a few exceptions, 7 subject to the same regulations as commercial licenses. Through the efforts of former Commissioner Frieda Hennock, the FCC has reserved exclusive space in its allocation of frequencies for such noncommercial broadcasters. 8 Other than this specific reservation, noncommercial licenses are still subject to the same renewal process and potential challenges as their commercial counterparts.
Such was the state of the public broadcasting system until the passage of the Educational Television Facilities Act in 1962. 9 The Act added the element of government funding to public broadcasting by establishing a capital grant program for noncommercial facilities. This second level of the system was reorganized and expanded by the Public Broadcasting Act of 1967 10 which created the Corporation for Public Broadcasting (CPB). The Corporation, the product of a study made by the Carnegie Commission on Educational Television, 11 was established as a funding mechanism for virtually all activities of noncommercial broadcasting. In setting up this nonprofit, private corporation, the Act specifically prohibited CPB from engaging in any form of "communication by wire or radio." 12
The third level of the public broadcasting system was added in 1970 when CPB and a group of noncommercial licensees formed the Public Broadcasting Service (PBS) and National Public Radio. 13 The Public Broadcasting Service operates as the distributive arm of the public television system. As a nonprofit membership corporation, it distributes national programming to approximately 150 educational licensees via common carrier facilities. This interconnection service is funded by the Corporation (CPB) under a contract with PBS; in addition, much of the programming carried by PBS is either wholly or partially funded by CPB. National Public Radio provides similar services for noncommercial radio. In 1974, CPB and the member licensees of PBS agreed upon a station program cooperative plan 14 to insure local control and origination of noncommercial programming funded by CPB. Though PBS is the national coordinator under this scheme, it is not a "network" in the commercial broadcasting sense, and does not engage in "communication by wire or radio," except to the extent that it contracts for interconnection services.
With the structure of the public broadcasting system in view, we turn to AIM's contention that the FCC should enforce the mandate of § 396(g)(1)(A) against the CPB. Since the Section is clearly directed to the Corporation and its programming activities, we have no doubt that the Corporation must respect the mandate of the Section. However, we conclude that nothing in the language and legislative history of the Federal Communications Act or the Public Broadcasting Act of 1967 authorizes the FCC to enforce that mandate against the CPB.
Section 398 of the Communications Act expresses the clear intent of Congress that there shall be no direct jurisdiction of the FCC over the Corporation. That section states that nothing in the 1962 or 1967 Acts "shall be deemed (1) to amend any other provision of, or requirement under this Act; or (2) to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision or control over educational television or radio broadcasting, or over the Corporation or any of its grantees or contractors . . . ." Since the FCC is obviously an "agency . . . of the United States" and since any enforcement of § 396(g)(1)(A) would necessarily entail "supervision" of the Corporation, the plain words of subsection (2) preclude FCC jurisdiction. We decline to rely entirely on the literal meaning of § 398, however. Section 399 of the 1967 Act, as amended in 1973, 15 is contrary to the § 398 prohibition in that it mandates " supervision" of noncommercial licenses and contemplates FCC enforcement. 16 The conflict between § 398 and § 399 creates at least an ambiguity which casts a cloud on the literal meaning of § 398. To resolve any doubts created thereby we look to the legislative history of the 1967 Act for extrinsic evidence of its meaning. 17
Congress desired to establish a program funding agency which would be free from...
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