Syracuse Peace Council v. F.C.C.

• Decision Date: 10 February 1989
• Docket Number: Nos. 87-1516,87-1544,s. 87-1516
• Parties: , 57 USLW 2488, 16 Media L. Rep. 1225 SYRACUSE PEACE COUNCIL, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Meredith Corporation, CBS, Inc., Radio-Television News Directors Association, American Newspaper Publishers Association, Democratic National Committee, National Broadcasting Co., Intervenors. Henry GELLER and Donna Lampert, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Meredith Corporation, National Association of Broadcasters, National Broadcasting Company, Inc., CBS, Inc., Radio-Television News Directors Association, American Newspaper Publishers Association, Freedom of Expression Foundation, Reporters Committee for Freedom of the Press, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 654

867 F.2d 654

276 U.S.App.D.C. 38, 57 USLW 2488, 16

Media L. Rep. 1225

SYRACUSE PEACE COUNCIL, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of

America, Respondents,

Meredith Corporation, CBS, Inc., Radio-Television News

Directors Association, American Newspaper

Publishers Association, Democratic

National Committee, National

Broadcasting Co.,

Intervenors.

Henry GELLER and Donna Lampert, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of

America, Respondents,

Meredith Corporation, National Association of Broadcasters,

National Broadcasting Company, Inc., CBS, Inc.,

Radio-Television News Directors Association, American

Newspaper Publishers Association, Freedom of Expression

Foundation, Reporters Committee for Freedom of the Press, Intervenors.

Nos. 87-1516, 87-1544.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 13, 1988.

Decided Feb. 10, 1989.

As Amended Feb. 10, 1989.

Henry Geller, pro se, with whom Donna Lampert, pro se, was on the brief for petitioners Geller and Lampert.

Andrew Jay Schwartzman, Washington, D.C., with whom David W. Danner was on the brief, for petitioner Syracuse Peace Council. Earle K. Moore, New York City, also entered an appearance for petitioner Syracuse Peace Council, et al.

Angela J. Campbell, Washington, D.C., Yolanda Gallegos and Robert T. Perry were on the brief for petitioner Office of Communication of the United Church of Christ. Michael Botein, Washington, D.C., also entered an appearance for petitioner Office of Communication of the United Church of Christ.

Diane S. Killory, Gen. Counsel, F.C.C., with whom Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Kenneth G. Starling, Deputy Asst. Atty. Gen., C. Grey Pash, Jr., Sue Ann Preskill, Richard J. Bozzelli, Counsel, F.C.C., and John J. Powers, III, Atty. Dept. of Justice, Washington, D.C., were on the brief for respondents. Robert J. Wiggers, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents.

Timothy B. Dyk, with whom Adrienne Masters, J. Laurent Scharff, W. Terry Maguire, Washington, D.C., Bridgette M. Rouson, Reston, Va., David H. Hunsaker, Steven A. Bookshester, Jane E. Kirtley and Henry L. Baumann were on the brief, for intervenors CBS, Inc. James M. Smith, John B. Wyss, Richard E. Wiley and William B. Baker, Washington, D.C., also entered appearances for intervenors, CBS, Inc.

Floyd Abrams, with whom Dean Ringel, New York City, Michael H. Bader, John M. Pelkey, Melodie A. Virtue, Washington, D.C., and Thomas G. Fisher were on the brief, for intervenor Meredith Corp.

Howard Monderer, Molly Pauker, Washington, D.C., and Corydon B. Dunham, New York City, were on the brief for intervenor Nat. Broadcasting Co., Inc.

Charles D. Ferris, Bruce D. Sokler and James A. Kirkland, Washington, D.C., were on the brief for intervenors Democratic Nat. Committee.

Phillip Heymann, Yoland Gallegos, Don Simon and Mark E. Chopko, Washington, D.C., were on the brief for amici curiae, Common Cause, et al., urging reversal. Phillip H. Harris, Washington, D.C., also entered an appearance for amici curiae, Common Cause, et al.

Philip H. Hecht, Washington, D.C., was on the brief for amicus curiae, People for the American Way, urging reversal. Jan G. Levine also entered an appearance for amicus curiae, People for the American Way.

David W. Danner, Washington, D.C., entered an appearance for amicus curiae, Safe Energy Communications Council, et al.

Before WALD, Chief Judge, and STARR and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Opinion concurring in part and dissenting in part filed by Chief Judge WALD.

Concurring opinion filed by Circuit Judge STARR.

STEPHEN F. WILLIAMS, Circuit Judge:

Under the "fairness doctrine," the Federal Communications Commission has, as its 1985 Fairness Report explains, required broadcast media licensees (1) "to provide coverage of vitally important controversial issues of interest in the community served by the 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). In adjudication of a complaint against Meredith Corporation, licensee of station WTVH in Syracuse, New York, the Commission concluded that the doctrine did not serve the public interest and was unconstitutional.

Accordingly it refused to enforce the doctrine against Meredith. Although the Commission somewhat entangled its public interest and constitutional findings, we find that the Commission's public interest determination was an independent basis for its decision and was supported by the record. We uphold that determination without reaching the constitutional issue.

I.

In the summer of 1982 Meredith ran a series of advertisements over WTVH arguing that the Nine Mile II nuclear power plant was a "sound investment for New York." Syracuse Peace Council complained to the Commission that Meredith had failed to give viewers conflicting perspectives on the plant and had thereby violated the second of the fairness doctrine's two requirements.

In its initial decision the Commission agreed with Syracuse that Meredith had failed to fulfill its obligations under the doctrine and demanded that the station within 20 days give notice of how it planned to meet those obligations. Syracuse Peace Council, 99 F.C.C.2d 1389, 1401 (1984).

Meredith filed a petition for reconsideration in which it argued that the fairness doctrine was unconstitutional. Meredith Reply to Opposition and Petition for Reconsideration and Supplement, April 12, 1985, at 11-41, Joint Appendix in Case No. 85-1723 at 261-91. Before ruling on Meredith's petition, the Commission completed its 1985 Fairness Report, the culmination of a separate inquiry into both the wisdom and constitutionality of the fairness doctrine. Inquiry into Alternatives to the General Fairness Obligations of Broadcast Licensees, 102 F.C.C.2d 143 (1985).

On the issue of whether the doctrine continued to promote the public interest, the 1985 Report said that the Commission was "firmly convinced that the fairness doctrine, as a matter of policy, disserves the public interest ..." 102 F.C.C.2d at 148. See also id. at 147 (similar); id. at 246 (language identical to that quoted). In reaching that conclusion the Commission invoked essentially the same grounds as it has in the present action--chiefly, that growth in the number of broadcast outlets reduced any need for the doctrine, that the doctrine often worked to dissuade broadcasters from presenting any treatment of controversial viewpoints, that it put the government in the doubtful position of evaluating program content, and that it created an opportunity for incumbents to abuse it for partisan purposes. Despite all this, it declined to eliminate the doctrine, expressing concern that it might be statutorily mandated. Id. at 148.

The 1985 Report also raised serious doubts about the continuing constitutionality of the fairness doctrine, but, saying that it was "the province of the federal judiciary--and not this Commission--to interpret the Constitution," 102 F.C.C.2d at 155, the Commission refused to make a constitutional ruling.

After issuing the 1985 Report, the FCC in due course considered Meredith's petition for reconsideration. In that context it again refused to address the constitutional issue--not on the ground that Meredith had raised the defense belatedly but solely on the theory that that issue should be left to Congress and the courts. It invoked its 1985 Report in support of this view. Syracuse Peace Council, 59 Rad.Reg.2d 179, 182 n. 4.

On appeal, this court reversed and remanded the case to the Commission. Meredith Corp. v. FCC, 809 F.2d 863 (D.C.Cir.1987). We noted the principle that regulatory agencies cannot invalidate an act of Congress, see Johnson v. Robison, 415 U.S. 361, 368, 94 S.Ct. 1160, 1166, 39 L.Ed.2d 389 (1974), but said that an agency could not blind itself to a constitutional defense to a "self-generated" policy. 809 F.2d at 872. In the meantime, we observed, this court had in another decision found that the fairness doctrine was not mandated by statute. Telecommunications Research & Action Center v. FCC, 801 F.2d 501, reh'g en banc denied, 806 F.2d 1115 (D.C.Cir.1986) ("TRAC"),, cert. denied, --- U.S. ----, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987). See 809 F.2d at 873 n. 11. Thus on remand On remand, the Commission expanded the scope of the Meredith proceeding by soliciting comments from the public on the general questions whether "in light of the 1985 Fairness Report, enforcement of the fairness doctrine is constitutional and whether enforcement of the doctrine is contrary to the public interest." Syracuse Peace Council, 52 Fed.Reg. 2805, 2805 (Jan. 27, 1987). In its Memorandum Order and Opinion in Syracuse Peace Council, 2 F.C.C.Rcd. 5043 (1987), recon. denied, 3 F.C.C.2d 2035 (1988), the Commission ruled in favor of Meredith.

                the Commission would have to resolve Meredith's constitutional defense, unless it determined in light of the 1985 Report that enforcement of the doctrine was contrary to the public interest.  Id. at 874.    We explicitly noted that the 1985 Report had concluded that indeed the doctrine no longer served the public interest standard of the Communications Act, see id. at 867, and that in the Report the Commission had "largely undermined the legitimacy of its own rule" and "eviscerate[d] the rationale" for the doctrine, id. at 873
                

The FCC relied heavily on the conclusions drawn in the 1985 Fairness Report, and in fact incorporated that Report into the record and "reaffirm[ed] [its] findings and conclusions." See 2 F.C.C.Rcd. at 5066 n. 120. After reciting and endorsing the 1985 Fairness Report's conclusions, the Commission declared that "the fairness...