Radio-TV. News Dir. Ass'n v. Fed. Comm. Comm'n, 98-1305

• Decision Date: 03 August 1999
• Docket Number: No. 98-1334,No. 98-1305,98-1305,98-1334
• Citation: 184 F.3d 872
• Parties: (D.C. Cir. 1999) Radio-Television News Directors Association and National Association of Broadcasters, Petitioners v. Federal Communications Commission and United States of America, Respondents Office of Communication, Inc., of the United Church of Christ, et al.,Intervenors Consolidated with
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 872

184 F.3d 872 (D.C. Cir. 1999)

Radio-Television News Directors Association and National Association of Broadcasters, Petitioners v. Federal Communications Commission and United States of America, Respondents

Office of Communication, Inc., of the United Church of Christ, et al.,Intervenors

No. 98-1305 Consolidated with No. 98-1334

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 21, 1999

Decided August 3, 1999

[Copyrighted Material Omitted]

On Petitions for Review of an Order of the Federal Communications Commission

Daniel E. Troy argued the cause for petitioners. With him on the briefs were Richard E. Wiley, Henry L. Baumann, Jack N. Goodman and Steven A. Bookshester. Kathleen A. Kirby entered an appearance.

David M. Hunsaker and Denise B. Moline were on the briefs for appellant Freedom of Expression Foundation, Inc.

Christopher J. Wright, General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Frank W. Hunger, Assistant Attorney General at the time the brief was filed, U.S. Department of Justice, Mark B. Stern and Jacob M. Lewis, Attorneys, Daniel M. Armstrong, Associate General Counsel, Federal Communications Commission, and C. Grey Pash, Jr., Counsel.

Andrew Jay Schwartzman argued the cause for intervenors Office of Communication, Inc., of the United Church of Christ, et al. With him on the brief was Gigi B. Sohn.

Angela J. Campbell and Randi M. Albert were on the brief for amicus curiae Safe Energy Communication Council.

Before: Edwards, Chief Judge, Wald and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge:

These consolidated appeals challenge the Federal Communications Commission's ("FCC") decision to not repeal the personal attack and political editorial rules. Petitioners¹ maintain that the rules are "two vestiges of a bygone area of broadcasting regulation" that should have disappeared when the FCC abrogated the fairness doctrine that the two rules were allegedly intended to "effectuate." Preserving the rules when their rationale has evaporated, petitioners contend, is arbitrary and capricious, and violates the First Amendment. The FCC has deadlocked on its proposal to repeal the rules, so we review the joint statement of Commissioners Ness and Tristani supporting retention of the rules as the opinion of the agency. See In re:Radio-Television News Dirs. Ass'n, No. 97-1528, 1998 WL 388796 (D.C. Cir. May 22, 1998) (unpublished opinion).

Although the FCC issued a notice of proposed rulemaking ("NPRM") proposing to repeal or modify the two challenged rules because it had concluded that the rules might no longer be in the public interest, and that "especially searching" reexamination was necessary, the FCC now defends the rules primarily by negative implication, rejecting attacks on the rules while assuming their underlying validity. Absent affirmative justification of the two rules as being in the public interest, or explanation of why the rules should survive in light of FCC precedent rejecting the fairness doctrine, the court is left in large part to guess the rationale that shields the rules from critiques the FCC found persuasive when reviewing the fairness doctrine, and which the FCC itself proffered in the NPRM. Such an approach to defending an existing rule against a suggestion that it be repealed might in other circumstances be sufficient to withstand judicial review under the Administrative Procedure Act, 5 U.S.C. § 706 (1994) ("APA"), but not where the NPRM and subsequent FCC precedent frame the proceeding to require a persuasive rationale for rules that seem unnecessary. Without a clear explanation for the rules, the court is not in a position to review whether they continue to serve the public interest, and whether they burden First Amendment interests too severely. The court, therefore, cannot affirm the FCC's order, but neither can it conclude that the FCC could not on remand justify the rules consistently with principles of administrative law. Accordingly, rather than enjoining enforcement of existing rules that the FCC might be able to justify, we must remand the case for the FCC to further explain its decision not to repeal or modify them. Should a further challenge be made to the FCC's decision on remand, the court will be in a position to test the FCC's rationale against the factual and legal attacks that petitioners raise against it.

I.

From the early days of spectrum regulation in the 1930s and 1940s, the FCC imposed upon broadcasters a duty that came to be known as the "fairness doctrine." To merit a broadcast license, applicants were obliged, first, "to cover vitally important controversial issues of interest in their communities," and second, "to provide a reasonable opportunity for the presentation of contrasting viewpoints." Syracuse Peace Council, 2 F.C.C.R. 5043, 5058 n.2 (1987), recon. denied, 3 F.C.C.R. 2035 (1988). The fairness doctrine persisted until 1987, although its death knell sounded in 1985, when the FCC released an exhaustive "Fairness Report" declaring the doctrine obsolete and "no longer [in] ... the public interest." Fairness Report, 102 F.C.C.2d 142, 246 (1985). The report concluded that new media technologies and outlets ensured dissemination of diverse viewpoints without need for federal regulation, that the fairness doctrine chilled speech on controversial subjects, and that the doctrine interfered too greatly with journalistic freedom. See id. at 147. The FCC did not immediately abrogate the doctrine, however, electing instead to await resolution of proposals percolating in Congress. See id. 247. At the time, the FCC was concerned that the 1959 amendments to the Communications Act rendered the fairness doctrine a statutory necessity, subject to repeal only by Congress. See id. at 227-46. Less than a year later, the court held that the fairness doctrine derived from the FCC's mandate to serve the public interest, subject to changing agency interpretation, and was not compelled by statute. See Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 517-18 (D.C. Cir. 1986). The doctrine's demise swiftly followed.

In 1987, the FCC announced during an adjudication that it would no longer enforce the fairness doctrine. Syracuse Peace Council, 2 F.C.C.R. at 5043. Relying heavily on its 1985 Fairness Report, the FCC reasoned that the doctrine imposed substantial burdens on broadcasters without countervailing benefits. As a result, the FCC concluded that the doctrine was inconsistent with both the public interest and the First Amendment principles it was intended to promote.

See id. at 5052. The court affirmed the conclusion that the fairness doctrine no longer served the public interest, but did not reach the constitutional question. See Syracuse Peace Council v. FCC, 867 F.2d 654, 656 (D.C. Cir. 1989).

The Syracuse order covered the fairness doctrine only as applied generally, and did not review each of its evolving permutations. In particular, the FCC noted that the order created precedent for, but did not directly resolve, reconsideration of the political editorial and personal attack rules, much less what effect general abrogation of the fairness doctrine would have on the doctrine's "every conceivable application." Syracuse Peace Council, 2 F.C.C.R. at 5063 n.75.

The FCC promulgated the political editorial and personal attack rules in 1967, although it had previously enforced them as corollaries to the fairness doctrine. See Amendment of Part 73 of the Rules to Provide Procedures in the Event of a Personal Attack or Where a Station Editorializes as to Political Candidates, 8 F.C.C.2d 721 (1967) ("Personal Attacks & Political Editorials"). The two rules are distinct, although petitioners attack them for essentially the same reasons.

The personal attack rule provides that:

When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity, or like personal qualities of an identified person or group, the licensee shall... transmit to the persons or group attacked ... [the substance of the attack] and an offer of a reasonable opportunity to respond over the licensee's facilities.

47 C.F.R. § 73.1920(a) (1998). Several exceptions limit the rule, including exclusion of attacks in "bona fide newscasts."47 C.F.R. § 73.1920(b)(4). The political editorial rule has a similar structure, affording political candidates notice of and an opportunity to respond to editorials opposing them or endorsing another candidate.² See 47 C.F.R. § 73.1930 (1998).

The Supreme Court has rejected facial First Amendment challenges to both rules. See Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969).³ The Court started from the premise that "[t]here is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all." Id. at 392. Given the scarcity of broadcast spectrum relative to interested users, the Court concluded that victims of personal attacks and candidates opposed by editorials might be "unable without governmental assistance to gain access to ... [broadcast media] for expression of their views."Id. at 400. Because dissemination of these views would serve the public's right "to receive suitable access to social, political, esthetic, moral, and other ideas and experiences," id. at 390, the First Amendment benefits of the personal attack and political editorial rules justified the imposition on licensees' asserted right "continuously to broadcast whatever they choose." Id. at 386. The Court cautioned, however, that "if experience with the administration of [these] doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage [of public issues], there will be time enough to reconsider the constitutional implications." Id. at 393.

The...