Council for Employment and Economic Energy Use v. F.C.C., 77-1371

• Decision Date: 04 May 1978
• Docket Number: No. 77-1371,77-1371
• Citation: 575 F.2d 311
• Parties: 3 Media L. Rep. 2467 COUNCIL FOR EMPLOYMENT AND ECONOMIC ENERGY USE, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Maine Citizens for Returnable Containers, et al., Intervenors.
• Court: U.S. Court of Appeals — First Circuit

Page 311

575 F.2d 311

3 Media L. Rep. 2467

COUNCIL FOR EMPLOYMENT AND ECONOMIC ENERGY USE, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

Maine Citizens for Returnable Containers, et al., Intervenors.

No. 77-1371.

United States Court of Appeals, First Circuit.

Argued March 6, 1978.

Decided May 4, 1978.

Sanford A. Kowal, Boston, Mass., with whom Sallop, Kowal & Davis, Associates, Boston, Mass., were on brief for appellant.

Diana L. Evans, Washington, D. C., with whom Robert R. Bruce, Gen. Counsel, Danial M. Armstrong, Associate Gen. Counsel, and C. Grey Pash, Jr., counsel, F.C.C., Washington, D. C., were on brief for respondents.

Thomas H. Wall, B. Dwight Perry, D. Todd Christofferson and Dow, Lohnes & Albertson, Washington, D. C., on brief for intervenor, Plough Broadcasting Co., Inc.

Randy I. Bellows, Media Access Project, Washington, D. C., on brief for intervenors, Maine Citizens for Returnable Containers.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

We are asked to disapprove a Federal Communications Commission ruling made under its "fairness doctrine". On October 26, 1976, one week before the general election in November, the Council for Employment and Economic Energy Use (the "Council") petitioned the Commission for a declaratory ruling with respect to application of the "fairness doctrine" to radio advertisements concerning a referendum question on the Massachusetts ballot. Two days later, the Commission's Broadcast Bureau responded by ruling that the practices about which the Council complained were permissible. After the election, the Council applied for review by the full Commission, which upheld the Broadcast Bureau. The Council then sought review in this court. Before argument the Commission filed a motion to dismiss the appeal for lack of jurisdiction, arguing that the Council is not a "party aggrieved" by a Commission order within the meaning of 28 U.S.C. § 2344.

The Council is a political organization formed under Mass.Gen.Laws ch. 55, § 6. It had opposed a proposed law which, if approved in the November 1976, referendum, would have prohibited utilities from selling electricity at discount to large consumers. Commencing October 4, 1976, the Council advertised its views by means of paid radio advertising. Fair Share, Inc., an organization with views opposing those of the Council, thereafter demanded and received from three Massachusetts stations free time to respond to the Council's advertisements. The Council's petition alleged that Fair Share received one free minute of radio time from these stations for every two purchased by the Council. The Council claimed that Fair Share had had adequate resources to pay for the radio time and in fact purchased $30,000 of television time after it had received the free radio time. The petition requested the FCC to rule

"that it is unreasonable for stations to offer free time to (Fair Share) solely because the Council purchased time on the stations and that stations carrying the Council's announcements are not required to offer free time to FSI."

The Broadcast Bureau upheld the reasonableness of the particular stations' actions on the ground of the wide range of discretion accorded broadcasters in meeting their fairness doctrine responsibilities. The Bureau observed,

"It is . . . the responsibility of the licensees within their good faith discretion to determine how to present contrasting views on the issue in question. They may choose to provide free spot or program time or choose any other format in any reasonable manner to discharge their fairness doctrine obligations in their overall programming. The Commission will review the licensees' actions only to determine whether the licensees have acted reasonably and in good faith."

Although the voters decided the referendum in accordance with the Council's wishes, the Council pressed an appeal to the Commission. The Council contended that the Bureau had failed to address the question of whether the fairness doctrine compelled the action taken by the three radio stations.

"The question presented for review is whether radio stations are required under the 'Cullman rule' * to provide a fixed ratio of free spot announcements to an organization seeking to express views on a ballot proposition different from views expressed in paid spot announcements broadcast on the stations when the organization is fully able to pay for the time it requests.

The application did not directly challenge the determination that the radio stations had acted reasonably, and in its reply to comments on the application made by other parties, the Council declared,

"(The central issue of this case) is not, as the Bureau suggests, whether 'the licensees abused their discretion in offering free time to (Fair Share),' but, rather, whether the Commission should have imposed any Fairness Doctrine obligations on the stations under the particular facts of this case. It is the Commission's requirement and not the licensees' response to that requirement that is at issue here." (Footnote omitted.)

In spite of the way the Council cast the question for review, the Commission chose to delve into the appropriateness of the response by the three radio stations to their perceived obligations. As the Commission put it,

"It appears that the Council is requesting the Commission to hold that the stations, by donating time to (Fair Share), did more than was necessary to discharge the fairness doctrine obligations they felt had been incurred by broadcasting the Council's paid spot announcements. As indicated more fully herein, the question, in effect, is not whether the licensees were required to give time to (Fair Share) to broadcast a contrasting view on the electric rate ballot proposition, but whether the stations acted reasonably in determining to discharge their fairness obligations in this particular manner."

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