Branch v. F.C.C., 86-1256

• Decision Date: 21 July 1987
• Docket Number: No. 86-1256,86-1256
• Citation: 824 F.2d 37
• Parties: , 56 USLW 2061, 14 Media L. Rep. 1465 William H. BRANCH, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, American Legal Foundation, Consumer Federation of America, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 37

824 F.2d 37

262 U.S.App.D.C. 310, 56 USLW 2061,

14 Media L. Rep. 1465

William H. BRANCH, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents American Legal Foundation, Consumer Federation of America et al., Intervenors.

No. 86-1256.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 10, 1986.

Decided July 21, 1987.

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

Robert L. Corn, with whom Marvin J. Diamond, Washington, D.C. was on the brief, for petitioner.

C. Grey Pash, Jr., Counsel, F.C.C., with whom Jack D. Smith, General Counsel, Daniel M. Armstrong, Associate General Counsel, F.C.C., and John J. Powers, III, Atty., Dept. of Justice, Washington, D.C. were on the brief for respondents. George Edelstein, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondent.

David W. Danner, with whom Andrew Jay Schwartzman, Washington D.C., was on the brief, for intervenor, Consumer Federation of America, et al. Robert M. Gurss, Washington, D.C., entered an appearance, for intervenor.

Michael P. McDonald, was on the brief, for intervenor, American Legal Foundation.

David M. Hunsaker, McLean, Va., was on the brief, for amicus curiae, The Freedom of Expression Foundation, urging the Court to find section 315 as unconstitutional.

Jane E. Kirtley and Elaine P. English, Washington, D.C., were on the brief for amicus curiae, The Reporters Committee for Freedom of the Press, urging the reversal of the F.C.C. decision in this case.

Before BORK and STARR, Circuit Judges, and McGOWAN, Senior Circuit judge.

Opinion for the Court filed by Circuit Judge BORK.

Concurring opinion filed by Circuit Judge STARR.

BORK, Circuit Judge:

A television news reporter who wishes to run for public office challenges the Federal Communications Commission's decision that the station which employs him would be required to provide "equal time" to his political opponents. This decision would require the station to offer his opponents opportunities to appear on the station that are equivalent to the newscaster's regular daily appearances. The Commission's determination rested on a federal statute. The reporter challenges both the interpretation of the statute and its constitutionality. We deny the petition for review.

I.

The petitioner, William Branch, is a television reporter who covers general assignments for station KOVR in Sacramento, California. He appears on the air in newscasts, on average, about three minutes per day, reporting stories assigned to him by the station. Branch lives in nearby Loomis, California, a small community of about 4,000 people. Beginning late in 1982, he participated in a successful effort to incorporate Loomis as a town. In 1984 Branch decided to seek election to the new Loomis town council.

Branch was aware that a federal statute--47 U.S.C. Sec. 315(a) (1982)--imposes certain "equal time" burdens on broadcasters. He therefore consulted with station management for advice before commencing his campaign. The KOVR news editors calculated that the station would be required to provide thirty-three hours--or about one and a half broadcast days--of response time to Branch's opponents if he continued to work there during his campaign. ¹ They told Branch that KOVR was unwilling to provide that amount of time to his opponents, and that if he wished to maintain his candidacy he must take an unpaid leave of absence during the campaign, with no guarantee that he would be able to resume his duties after the election.

Branch immediately sought judicial and administrative determination of his rights, but was unable to get a ruling before the 1984 election. Put to a choice, he continued his work at KOVR and dropped out of the town council race. Upon terminating his candidacy, however, he filed a petition for a declaratory ruling from the Commission on the effect of the "equal opportunities" requirement in 47 U.S.C. Sec. 315(a) on newscaster candidates. Branch sought a ruling that would enable him to run for the Loomis town council in a future election without requiring his employer to offer equal time to his opponents. He specifically asked the Commission to rule on two issues: whether the statute required broadcast stations to provide equal time to the opponents of newscaster candidates; and whether the statute was constitutional as so applied.

The Commission denied the petition. After reviewing the language and purposes of the statute, as well as its legislative history, the Commission concluded that newscaster candidates do not come within any special exemption from a station's statutory obligation to provide equal time to other candidates. In re William H. Branch, 101 F.C.C.2d 901, 902-04, 906 (1985). The Commission initially refused to review its previous determinations that section 315 is constitutional, mindful "that such constitutional decisions have 'generally been thought beyond the jurisdiction of administrative agencies.' " Id. at 904 n. 4 (quoting Oestereich v. Selective Serv. Bd., 393 U.S. 233, 242, 89 S.Ct. 414, 419, 21 L.Ed.2d 402 (1968) (Harlan, J., concurring)). The Commission went on, however, to state that it would defer to Congress' determination "in enacting section 315 that there is a governmental interest in assuring that licensees afford equitable treatment to all candidates running for a particular office, and that this interest justifies imposing certain limitations on broadcast speech.... [that treat] all candidates for public office ... in the same manner." Id. at 904-05. The Commission also ruled that the statute is not unconstitutionally overbroad. Id. at 905. Branch's petition for reconsideration was denied by the Commission, and he now seeks review in this court.

II.

The government contends that Branch lacks standing to bring this suit in federal court. In order to establish standing, Branch must allege "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The government correctly notes that these standards remain applicable where the relief sought is merely a declaratory ruling, see Radiofone, Inc. v. FCC, 759 F.2d 936, 938-39 (D.C.Cir.1985), and that the standards are unaffected by the fact that the petitioner was permitted to proceed before the administrative agency, which is not subject to the same jurisdictional limits that article III imposes on the federal courts. See California Ass'n of the Physically Handicapped v. FCC, 778 F.2d 823, 826 n. 8 (D.C.Cir.1985).

The crucial question is whether Branch has suffered any actual or threatened injury. The government concedes that if Branch could demonstrate that he was likely to lose his job, even temporarily, as a result of becoming a political candidate, he would have standing to seek review of the Commission's decision. Brief for Respondents at 10. Such an injury would be "distinct and palpable," see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), and the direct threat of this injury would not vanish merely because in the previous election Branch chose to keep his job and forgo his candidacy. At that point, indeed, the alleged injury to Branch simply changed form, possibly becoming even more severe, for "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976).

Branch has adequately demonstrated that he suffered the particular injury just described. In an affidavit attached to his petition for reconsideration of the Commission's decision, Branch affirmed that after he decided to run for town council, he

consulted with station management for advice. KOVR news editors told [Branch] that he must take an unpaid leave of absence during the campaign with no guarantee of resuming his duties after the election if he were to maintain his candidacy, because of the significant amounts of time that would have to be provided for opponents of a newscaster candidate under the Commission's section 315 rulings. [Branch] declined to run for town council because of this response.

Petition for Reconsideration at 3-4, Joint Appendix ("J.A.") at 83-84; Affidavit of William H. Branch at 1 (Sept. 10, 1985), J.A. at 106. This statement was subsequently confirmed in an affidavit filed with the court by Albert Jaffee, the news director at KOVR. Affidavit of Albert Jaffee at 1-2 (Dec. 12, 1986). These statements are sufficient to establish both that Branch's injury was caused by the Commission's view of the operation of the statute and that it is likely to be redressed by a favorable ruling on his petition. In addition, Branch correctly alleges that the Commission's ruling has a continuing impact on his ability to run for the Loomis town council in a future election. See Petition for a Declaratory Ruling In re William H. Branch, at 1 (Aug. 30, 1984), J.A. at 28. We therefore hold that Branch has standing to bring this case.

One of the intervenors recasts these objections as an argument that the case is not ripe for decision. The contention seems to be that Branch's claim would become ripe if he actually lost his job by prosecuting a campaign. This is, of course, merely a modified version of the argument that Branch has suffered no injury. It flies in the face of considerable precedent that a federal court may decide not only claims involving actual present injury, but also those involving a threat of injury which is sufficiently direct and immediate to constitute more than a string of contingencies or speculative characterizations. See, e.g., Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 1, 82 L.Ed. 493 (1937); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505 (1974); Laird v....