Meredith Corp. v. F.C.C.

• Citation: 809 F.2d 863
• Decision Date: 10 February 1987
• Docket Number: No. 85-1723,85-1723
• Parties: , 55 USLW 2391, 13 Media L. Rep. 1993 MEREDITH CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Syracuse Peace Council, CBS, Inc., Radio-Television News Directors Association, et al., Democratic National Committee, et al., National Broadcasting Company, Inc., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 863

809 F.2d 863

258 U.S.App.D.C. 22, 55 USLW 2391, 13

Media L. Rep. 1993

MEREDITH CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents,

Syracuse Peace Council, CBS, Inc.,

Radio-Television News Directors Association, et al.,

Democratic National Committee, et al., National

Broadcasting Company, Inc., Intervenors.

No. 85-1723.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 30, 1986.

Decided Jan. 16, 1987.

As Amended Jan. 16 and Feb. 10, 1987.

Floyd Abrams, with whom Dean Ringel, Michael H. Bader, John M. Pelkey, Melodie A. Virtue, James E. Dunstan and Thomas G. Fisher were on the brief, for petitioner. Richard M. Riehl entered an appearance, for petitioner.

Jack D. Smith, General Counsel, F.C.C., with whom Daniel M. Armstrong, Associate General Counsel, C. Grey Pash, Jr., Counsel, F.C.C., John J. Powers, III and Robert J. Wiggers, Attys., Dept. of Justice were on the brief, for respondents. Robert B. Nicholson and George Edelstein, Attys., Dept. of Justice, entered appearances, for respondents.

Andrew J. Schwartzman, with whom David William Danner was on the brief, for intervenor, Syracuse Peace Council. Robert M. Gurss also entered an appearance, for intervenor.

Timothy B. Dyk, with whom Andrea Ann Timko, Margaret L. Tobey and Andrienne Masters, for CBS, Inc., J. Laurent Scharff, and James M. Smith, for Radio-TV News Directors Ass'n, et al. and Henry L. Bauman and Steven A. Bookshester, for Nat. Ass'n of Broadcasters were on the joint brief, for intervenors, CBS, Inc., et al.

Bruce D. Sokler, with whom Charles D. Ferris, Frank W. Lloyd and James A. Kirkland, were on the brief, for intervenors, Democratic Nat. Committee, et al.

Howard Monderer and Molly Pauker were on the brief for intervenor, Nat. Broadcasting Co., Inc.

William W. Rogal was on the brief for amicus curiae, American Advertising Federation, urging reversal.

David M. Hunsaker and Denise Boule Moline were on the brief for amicus curiae, Freedom of Expression Foundation, urging reversal.

Ronald Arthur Qumbrun and Sam Kazman were on the brief for amicus curiae, Nancy Gutbrodt and Pacific Legal Foundation, seeking vacatur of the F.C.C. decision and adjudging the fairness doctrine unconstitutional.

Henry Geller and Donna Lampert, were on the brief, for amici curaie, Geller and Lampert urging the rejection of the constitutional challenge of the fairness doctrine.

Daryl Michal Freedman and Charles H. Firestone were on the brief, for amicus curiae, Common Cause, urging affirmance.

J. Clay Smith, Jr. was on the brief, for amicus curiae, Nat. Bar Ass'n, urging affirmance.

Daniel Warshawsky and Douglas L. Parker were on the brief for amici curiae, Nat. Ass'n for Better Broadcasting and the League of United Latin American Citizens, urging affirmance.

Robert T. Perry, was on the brief, for amici curiae, the American Civil Liberties Union, the Office of Communications of the United Church of Christ and the American Jewish Congress, urging the affirmance of the F.C.C. decision and the rejection of the challenge of constitutionality of the fairness doctrine.

Before SILBERMAN and WILLIAMS, Circuit Judges, and JAMESON, Senior District Judge. ^*

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Meredith Corporation ("Meredith") petitions this Court seeking reversal of the Federal Communications Commission's determination that Meredith's television station, WTVH of Syracuse, New York, violated the fairness doctrine. Meredith challenges the agency's action on the grounds that the Commission arbitrarily and capriciously enforced the fairness doctrine and that the doctrine in general and as applied to Meredith violates the first amendment. In response, the Commission and Intervenor Syracuse Peace Council ("SPC") contend that Meredith suffered no aggrievement and thus lacks standing, and that even if Meredith had standing, the Commission properly found that Meredith's broadcasting of certain advertisements gave rise to fairness doctrine obligations. After determining that Petitioner has standing, we hold that although the Commission reasonably interpreted its own fairness doctrine precedents, it failed to give adequate consideration to Meredith's constitutional argument. Accordingly, we remand for further consideration and explanation.

I.

The fairness doctrine requires licensees (1) "to provide coverage of vitally important controversial issues of interest in the community served by licensees," and (2) "to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues." Report Concerning General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 143, 146 (1985) [hereinafter "1985 Fairness Report"]. The fairness doctrine issue in this case arose during the summer of 1982 when Meredith's licensed television station, WTVH of Syracuse, New York, broadcast three advertisements sponsored by the Energy Association of New York. SPC complained to the FCC that Meredith had violated the fairness doctrine because the advertisements promoted the Nine Mile II nuclear power plant "as a sound investment for New York's future" without presenting opposing viewpoints. SPC alleged that the economic soundness of the nuclear plant was a controversial issue of public importance and to document its claim submitted a number of newspaper articles on the controversy surrounding the plant's construction. In addition, SPC noted that although the New York State Public Service Commission (PSC) had approved construction of the plant before the advertisements aired, that approval was under reconsideration throughout most of the summer. Numerous complaints had been filed with the PSC including petitions signed by over 20,000 citizens, which SPC maintained demonstrated the intensity of opposition to the plant. At the time of the advertisements, the plant was also being scrutinized by the New York State Consumer Protection Board, which ultimately challenged the PSC's approval of the plant in court.

In response, Meredith denied that the advertisements raised a controversial issue. Meredith argued that although the advertisements contained a "tag line" describing Nine Mile II as "a sound investment for New York's future," their main thrust was "the need to eliminate dependence on foreign oil" and "the need for electricity." Moreover, according to Meredith, even if the issue were defined as whether the nuclear plant was a sound investment, that issue was not controversial during the summer of 1982 when the advertisements aired, since the PSC had approved the plant the previous April. As for the newspaper articles submitted by SPC, Meredith contended that all but one were non-contemporaneous, most appearing after the advertisements had aired.

While SPC's complaint was pending during the summer of 1984--after all parties had filed their arguments with the Commission--Meredith aired more advertisements promoting Nine Mile II, but this time provided response time to SPC. In a memorandum opinion and order issued December 20, 1984, the Commission held Meredith had violated the fairness doctrine, finding that the advertisements had advocated the construction of Nine Mile II as a sound investment, that the economic soundness of the plant was a controversial issue of public importance, and thus Meredith had acted unreasonably in failing to present viewpoints opposed to the plant. The Commission ordered Meredith to explain how it would comply with its fairness obligations.

Meredith filed a timely petition for reconsideration, arguing the Commission had misapplied the fairness doctrine and that overall Meredith had acted reasonably because it offered response time to SPC when it subsequently aired similar advertisements in 1984. After the period for filing petitions for reconsideration, Meredith moved for leave to file a supplemental pleading, which contended that the fairness doctrine violates the constitution both as a general proposition and as applied in this case. SPC objected and asked the Commission to disregard Meredith's constitutional arguments as untimely and otherwise improperly presented. The Commission evidently deferred a decision on whether to grant Meredith leave to file the supplemental pleading until its final decision on reconsideration. While the motion for reconsideration was pending, on August 23, 1985, the Commission released its 1985 Fairness Report.

The Commission's 1985 Fairness Report was a comprehensive reexamination of the public policy and constitutional implications of the fairness doctrine. In the past, the Commission has defended the fairness doctrine despite the first amendment's general prohibition on content-based regulation of speech, arguing that the doctrine is justified in light of the limited availability of broadcast frequencies. The Commission believed through careful administration, the doctrine would increase the flow of diverse viewpoints, assuring that the viewing and listening public received suitable access to the marketplace of ideas. Id. at 146-47. The Supreme Court upheld the constitutionality of the fairness doctrine in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), reasoning that the doctrine's restrictions on broadcasters' speech rights were permissible because overall the doctrine furthered the paramount first amendment right of the public to be informed. Id. at 389-90, 89 S.Ct. at 1806. Red Lion was expressly premised on the scarcity of broadcast frequencies "in the present state of commercially acceptable technology as of 1969." Id. at 388, 89 S.Ct. at 1805. The Court noted that if experience with the administration of the fairness doctrine "indicates that [it has] the net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to reconsider the constitutional implications." Id. at 393,...