CBS, Inc. v. F. C. C.
| Decision Date | 03 November 1980 |
| Docket Number | Nos. 79-2403,79-2406 and 79-2407,s. 79-2403 |
| Citation | 629 F.2d 1,202 U.S.App.D.C. 369 |
| Parties | , 5 Media L. Rep. 2649 CBS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Carter/Mondale Presidential Committee, Inc., National Association of Broadcasters, et al., Intervenors. AMERICAN BROADCASTING COMPANIES, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, National Association of Broadcasters, Carter/Mondale Presidential Committee, Inc., Intervenors. NATIONAL BROADCASTING COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Carter/Mondale Presidential Committee, Inc., National Association of Broadcasters, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Federal Communications commission.
Timothy B. Dyk, Washington, D.C., with whom J. Roger Wollenberg, Thomas W. White and Joseph DeFranco, Washington, D.C., were on brief, for petitioner in No. 79-2403.
Thomas N. Frohock, Washington, D.C., with whom James A. McKenna, Jr. and Carl R. Ramey, Washington, D.C., were on brief, for petitioner in No. 79-2406.
Floyd Abrams, New York City, with whom Dean I. Ringel, George H. Freeman, New York City, and Howard Monderer, Washington, D.C., were on the brief, for petitioner in No. 79-2407.
Robert R. Bruce, Gen. Counsel, F.C.C., Washington, D.C., with whom David J. Saylor, Deputy Gen. Counsel, Terry Michael Banks, Associate Gen. Counsel, C. Grey Pash, Jr., and Lisa Margolis, Counsel, F.C.C., and John J. Powers, III, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondents.
John D. Lane, Washington, D.C., with whom Ramsey L. Woodworth, Howard K. McCombs and Anthony F. Essaye, Washington, D.C., were on brief, for intervenor, Carter/Mondale Presidential Committee.
Erwin G. Krasnow, Washington, D.C., was on brief, for intervenor, National Association of Broadcasters.
Heidi P. Sanchez, was on brief for Amici Curiae, National Citizens Committee for Broadcasting, et al., urging affirmance.
Bruce E. Fein, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondent, United States of America.
Jerry W. Markham, Washington, D.C., also entered an appearance for intervenor, Carter/Mondale Presidential Committee.
Before BAZELON, Senior Circuit Judge, TAMM, Circuit Judge, and MARKEY, * Judge, United States Court of Customs and Patent Appeals.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
In these consolidated appeals, the three major television networks seek review of orders by the Federal Communications Commission (FCC) finding that they had failed to fulfill their obligation under Section 312(a)(7) of the Communications Act 1 to permit "purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy." 2
In October, 1979, the Carter-Mondale Presidential Committee (CMPC) asked that the three networks make available to it a half-hour of television time in early December, 1979. The networks declined to do so. CMPC filed a complaint with the FCC charging a violation of Section 312(a)(7). The Commission concluded that the response of each of the networks to the Committee's request to purchase time was unreasonable because the networks had failed to apply the proper legal standard in denying the request. 3 It ordered the networks to comply with the requirements of the Act. The networks appealed. We affirm.
On October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, wrote each of the three major television networks, asking that they make available a 30-minute program slot between 8:00 PM and 10:30 PM on either December 4, 5, 6, or 7. 4 CMPC intended to present a documentary outlining President Jimmy Carter's record and that of his administration. The program was to be presented just after the President's formal announcement of his candidacy, and it was designed to set the tone for the President's campaign.
The networks declined to make the requested time available saying in essence that it was too much time, too soon in the race. CBS offered to make two 5-minute segments available; one in prime time (10:55 PM) on December 8, and one in the daytime class. 5 ABC told CMPC that it had not yet reached a decision as to when it would commence the sale of political time for the 1980 Presidential campaign, but that it would do so shortly. 6 It subsequently indicated that it would begin such coverage in January, 1980. 7 NBC simply indicated that it was not prepared to sell time for political programs in December, a month "too early in the political season for nationwide broadcast time to be made available for paid political purposes." 8
On October 29, 1979, CMPC filed with the FCC a complaint charging that the networks had violated their obligation to provide "reasonable access" pursuant to Section 312(a)(7). At an open meeting on November 20, 1979, the Commission found by a four-to-three vote that the networks had violated Section 312(a)(7). It issued a detailed Memorandum Opinion and Order (Order I) the next day 9 directing the networks to indicate by November 26, 1979, how they intended to fulfill their obligation under the Act. 10
The networks all sought reconsideration of the Commission's decision. Their reconsideration petitions were denied, however, and on November 28, 1979, the Commission issued a second Memorandum Opinion and Order (Order II) 11 clarifying its decision of the previous week. Order II set November 29, 1979 as the deadline by which the networks were required to file their plans for compliance with the statute.
On November 28, 1979, the networks petitioned this court for review of the FCC orders. 12 They also requested the court to stay the FCC orders pending such review, a request which we granted.
For reasons external to the campaign (primarily the perceived need to focus national attention on the plight of the American hostages in Iran), the Carter-Mondale Committee determined to postpone to early January the program it had planned to broadcast during the period December 4 to 7. It was still felt, however, that some time was needed in conjunction with the President's announcement of his candidacy. Accordingly, CMPC sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. It also sought and obtained from ABC and NBC offers of time for a 30-minute program in early January, and the ABC offer was accepted. Throughout these negotiations CMPC, as well as the networks, reserved all rights relating to this appeal.
In the early days of this nation, political campaigns even presidential campaigns were relatively simple affairs. Campaigning took the form of speeches "from stump and pulpit, of debate in the highly partisan press, of private correspondence, and of persuasive activities on election day." 13 Near the close of the nineteenth century, however, as printing presses became more common and the price of paper decreased, the "era of campaign literature" began. 14 Radio was first used in the 1924 campaign: Calvin Coolidge spent $120,000 for radio time; his opponent, John W. Davis, spent $40,000. 15 By 1928, it was the most important campaign medium. 16 Television was a factor in the 1948 election: Republican rivals Harold E. Stassen and Thomas E. Dewey conducted a television debate before the Oregon primary. By the 1952 campaign, presidential candidates were spending millions of dollars on television. 17 Today, there can be no doubt that we are in the "era of television campaigning." 18 Indeed, since 95 percent of our people operate a television set for an average of over five hours a day, 19 and 60 percent of them rely primarily on television for news, 20 it would be hard to overestimate the importance of television to our political processes. It is undisputed that "(f)or presidential and senatorial candidates, the television is a necessity." 21
Against this backdrop, Congress passed the Federal Election Campaign Act of 1971, including as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained three significant provisions: (1) the FCC was empowered to revoke a station's license "for willful or repeated failure to allow reasonable access to or permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for federal elective office on behalf of his candidacy;" 22 (2) during a specified period before a primary or general election, a broadcast station was not permitted to charge a legally qualified candidate for any public office a fee in excess of its "lowest unit charge . . . for the same class and amount of time for the same period;" 23 and, (3) in using the communications media, candidates for federal elective office were not permitted to exceed established spending limits. 24 The first of these provisions was codified as Section 312(a)(7) and is the basis of this litigation.
The networks argue that Section 312(a)(7) did not create a new right of access for federal candidates. They contend that the statute merely codified FCC policies developed prior to 1971 under the public interest standard. They cite as support for this proposition dictum from the Supreme Court decision in Columbia Broadcasting System, Inc. v. Democratic National Committee :
In 1959, as noted earlier, Congress amended § 315(a) of the Act to give statutory approval to the Commission's Fairness...
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