Telecommunications Research and Action Center v. F.C.C., 85-1160

• Decision Date: 16 December 1986
• Docket Number: No. 85-1160,85-1160
• Citation: 806 F.2d 1115
• Parties: , 13 Media L. Rep. 1896 TELECOMMUNICATIONS RESEARCH AND ACTION CENTER and Media Access Project, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, National Association of Broadcasters, Public Broadcasting Service, American Newspaper Publishers Association, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1115

806 F.2d 1115

257 U.S.App.D.C. 23, 13 Media L. Rep. 1896

TELECOMMUNICATIONS RESEARCH AND ACTION CENTER and Media Access Project, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents National Association of Broadcasters, Public Broadcasting Service, American Newspaper Publishers Association, Intervenors.

No. 85-1160.

United States Court of Appeals District of Columbia Circuit.

Dec. 16, 1986.

As Amended Dec. 16, 1986.

Andrew Jay Schwartzman, Henry Geller and Donna Lampert, Washington, D.C., were on petitioners' suggestion for rehearing en banc.

Before WALD, Chief Judge, ROBINSON, MIKVA, EDWARDS, RUTH BADER GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS, DOUGLAS GINSBURG, Circuit Judges.

Chief Judge WALD and Circuit Judge DOUGLAS GINSBURG did not participate in this order.

Circuit Judges SPOTTSWOOD W. ROBINSON, III, MIKVA, HARRY T. EDWARDS, RUTH BADER GINSBURG and STARR would grant the suggestion for rehearing en banc.

A statement of Circuit Judge MIKVA, joined by Circuit Judge HARRY T. EDWARDS, is attached.

A statement of Circuit Judge STARR, joined by Circuit Judges SPOTTSWOOD W. ROBINSON, III, and RUTH BADER GINSBURG, is attached.

A statement of Circuit Judge BORK is also attached.

ON PETITIONERS' SUGGESTION FOR REHEARING EN BANC

ORDER

PER CURIAM.

Petitioners' suggestion for rehearing en banc has been transmitted to the full Court. The taking of a vote was requested. A majority of the judges of the Court in regular active service have not voted in favor of the suggestion. Accordingly, it is

ORDERED, by the Court en banc, that the suggestion is denied.

MIKVA, Circuit Judge, with whom Circuit Judge HARRY T. EDWARDS joins, dissenting from the denial of rehearing en banc:

In the panel decision, the majority held that the fairness doctrine is not a "binding statutory obligation" under the Communications Act of 1934, 47 U.S.C. Sec. 315(a) (1982) (the Act), and therefore found that the Federal Communications Commission (the Commission) is not precluded from altering the fairness obligation in the case of teletext broadcasting. Telecommunications Research and Action Center and Media Access Project v. FCC, 801 F.2d 501, 517 (D.C.Cir.1986). This holding is flatly wrong. In amending the Act in 1959, Congress not only "recognized and preserved" "an administrative construction," see id. at 517, it explicitly approved of, ratified and codified the fairness doctrine. The majority's conclusion to the contrary flies in the face of the legislative history of section 315 and interpretations of that provision by the Supreme Court as well as this court. I therefore dissent from the decision of this court to deny rehearing en banc.

Section 315 warned broadcasters and the Commission that the new bill's equal time exemptions did not disturb the Commission's fairness doctrine requirements. The clear import of the amendment's language and legislative history was that the bill's drafters understood the Act to already require the fairness doctrine under the Act's public interest standard. Section 315 merely reaffirmed what was already the law.

The Report that accompanied the 1959 bill as it first emerged from Senate Hearings declared that the proposed changes to the Act would not affect "[Commission] policy or existing law which holds that a licensee's statutory obligation to serve the public interest is to include [the duty to present] a fair cross section of opinion." Hearings on Political Broadcasting before the Communications Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. at 13 (1959) (emphasis added). Senator Proxmire, not satisfied with having the declaration buried in the Report, amended the bill on the floor to refer specifically to the fairness doctrine:

but nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, and panel discussions, all sides of public controversies shall be given as equal an opportunity to be heard as is practically possible.

105 Cong.Rec. 14457 (1959).

There is no doubt that Senator Proxmire referred to a "binding statutory obligation," not to a requirement imposed by the Commission pursuant to its authority under the Act. His amendment deals with "interpretation of the Communications Act itself." Id. at 14462 (Sen. Hartke). It states "a requirement that broadcasters shall live and shall abide by the rule of fairness." Id. ("I understand the amendment to be a statement or codification of the standards of fairness. I understand that the Commission is now obliged by existing law and policy to abide by the standard of fairness.") (Sen. Pastore, Chairman of the Subcommittee).

The bill as reported from the House-Senate Conference modified the Senate version slightly to read essentially as section 315 does today. According to the Conference Report, the change in the Proxmire amendment was merely cosmetic. Id. at 17777; see also 105 Cong. Rec. 17831 (1959) ("We have maintained very carefully the spirit of the Proxmire amendment.") (Sen. Scott, Senate conferee). Indeed, the legislative history again evinces a recognition that the fairness principle is embodied in the Act itself. The Conference Report interpreted the provision as "a restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under [the Act]." Conf.Rep. No. 1069, 86th Cong., 1st Sess. at 5 (1959), U.S.Code Cong. & Admin.News 1959, pp. 2564, 2584. In the words of Congressman Harris, Chairman of the House Committee that reported the bill, Section 315 "reaffirmed the 'standard of fairness' established under the [Act]." Id. at 17778.

The drafters insisted on retaining the Proxmire amendment, "if with some slight modifications," "to be a continuing reminder and admonition to the [Commission] and to the broadcasters alike, that [Congress was] not abandoning the philosophy that gave birth to section 315, in giving people the right to have a full and complete disclosure of conflicting views on news of interest to the people of the country." Id. at 17830 (Sen. Pastore).

The Supreme Court has expressed a similar understanding of the 1959 amendment. In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Court upheld the fairness doctrine against constitutional challenge. In discussing the statutory basis for the doctrine, the Court stated that the "language makes it very plain that Congress, in 1959, announced that the phrase 'public interest,' which had been in the Act since 1927 imposed a duty on broadcasters to discuss both sides of controversial public issues. In other words, the amendment ... inhered in the public interest standard." 395 U.S. at 380, 89 S.Ct. at 1801. The Court went on to explain that Congress "ratified" the Commission's fairness doctrine construction of the public interest standard "with positive legislation." Id. at 381-82, 89 S.Ct. at 1802; see also id. at 383-84, 89 S.Ct. at 1803-04 (discussing the legislative history of the amendment).

Post-Red Lion cases reinforce the interpretation of the amendment as having codified and therefore as mandating the doctrine. In 1973, the Court observed that in the Act "Congress has imposed on all broadcast licensees" "an affirmative and independent statutory obligation to provide full and fair coverage of public issues." CBS v. Democratic National Committee, 412 U.S. 94, 129-30, 93 S.Ct. 2080, 2100, 36 L.Ed.2d 772 (1973); see also id. at 110 n. 8, 93 S.Ct. at 2090 n. 8 ("Congress amended Sec. 315 of the Act to give statutory approval to the Fairness Doctrine."); id. at 113 n. 12, 93 S.Ct. at 2092 n. 12 (same). Most recently, the Court declared that it was "not prepared to reconsider [its] long-standing approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required." FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 3117 n. 11, 82 L.Ed.2d 278, 289 n. 11 (1984).

This court has repeatedly considered the fairness doctrine as part of the statutory framework of the Act. As Judge Robinson explained for the court, "[the] language placed in Section 315(a) in 1959 ... codifies the fairness doctrine formulated by the Commission in 1949." Kennedy for President Committee v. FCC, 636 F.2d 432, 438 (D.C.Cir.1980) (citing Red Lion, 395 U.S. at 377-78, 89 S.Ct. at 1799-1800). The doctrine, which "originally evolved under the authority of general provisions of the [Act] calling for regulation in the 'public interest,' ... has since received explicit statutory recognition, in the 1959 amendment." Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1007 n. 11 (D.C.Cir.1976) (Wright, J., for a unanimous court); see also Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 296 n. 34 (D.C.Cir.1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976); Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d 16 (D.C.Cir.1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).

With the exception of a few recent expressions of doubt by individual Commissioners, the Commission's position has consistently been that with the 1959 amendment, Congress specifically ordained the fairness doctrine as a statutory requirement. See, e.g., Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, Appendix B, "The History of the Fairness Doctrine," 29 Fed.Reg. 10425 (1964); Letter to Senator Proxmire, 40 FCC2d 1238 (1973). For example, in a letter to Congressman Harris, the Commission stated that "...