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09/11/78 Office of Communication of v. Federal Communications


September 11, 1978




Before WRIGHT, Chief Judge, BAZELON and ROBB, Circuit Judges.






No. 76-1878 1978.CDC.152

Date Decided: September 11, 1978; As Amended September 19, 1978.

Petition for Review of an Order of the Federal Communications commission.


Opinion for the Court filed by BAZELON, Circuit Judge.


Petitioner, the Office of Communication of the United Church of Christ , an intervenor in proceedings before the Federal Communications Commission , seeks review of the Commission's latest expansion of the "on-the-spot" exemption to the equal opportunities provision of the Communications Act of 1934, 47 U.S.C. § 315(a)(4) (1970). *fn1 Until 1975, the Commission had insisted that broadcasters could not provide on-the-spot coverage of public appearances by candidates without incurring an obligation to offer equal time to other legally qualified candidates for the same office. *fn2 Thereafter, the Commission removed the obligation with respect to Live broadcasts of newsworthy political events. *fn3 In the case under review here, the FCC has lifted that obligation for delayed broadcasts of "bona-fide news events" involving political candidates.

On July 19, 1976, radio station WILM of Wilmington, Delaware, informed the FCC that it planned to record a public debate between Republican and Democratic congressional candidates for broadcast "the evening of the same day or three days later." Delaware Broadcasting Co., 60 F.C.C.2d 1030, 1030 (1976). The Commission's Broadcast Bureau ruled that such taped broadcast would create "an obligation by the licensee to afford "equal opportunities' to all legally qualified candidates for the office in question." Id. at 1031. The Commission, however, citing the need to preserve "considerable discretion in the presentation of news programming," reversed the Broadcast Bureau. *fn4 The FCC opinion stressed the broadcaster's responsibility to judge whether delayed broadcast of such a public event would be justified by the event's "current newsworthiness." The FCC stated that length of delay would be "a factor in determining the broadcaster's reasonableness and good faith," adding, "absent unusual circumstances, a delay of more than a day would raise questions" as to the broadcast's eligibility for a § 315(a)(4) exemption. Id. at 1032-33.

Petitioner, in challenging the FCC decision, contends that the Commission erred in interpreting the "on-the-spot" exemption to cover the broadcast of taped political events; and in adopting this interpretation in an adjudication of a particular case rather than in a rulemaking proceeding with provision for notice and comment. We affirm the FCC's decision against both claims. I. THE CONSTRUCTION OF § 315(a)(4)

A. The Statute

Section 315(a) establishes four exemptions to the equal opportunities requirement, determined according to type of news coverage: (1) regularly scheduled newscasts, (2) news interview shows, (3) news documentaries, and (4) on-the-spot coverage of news events. *fn5 By modifying all four categories with the phrase "bona fide," Congress plainly emphasized its reliance on newsworthiness as the basis for an exemption.

Section 315(a)(4) exempts a broadcast licensee from an equal time obligation if any candidates appear in "on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto)." 47 U.S.C. § 315(a)(4) (1970). The central ambiguity in the provision is the meaning of the phrase "on-the-spot." Petitioner insists that the term refers to events broadcast "as they happen, i. e., on the spot." Reply Brief of Petitioner, at 9. Respondents, citing submissions by intervenors from the broadcast industry, contend that the phrase is a "term of art" in the industry that refers "primarily to the location of the news coverage rather than to the time it was broadcast." Brief for Respondents, at 7. This view contrasts on-the-spot coverage with in-studio broadcasts, and suggests that there is no temporal content to the statutory phrase. *fn6 Although the FCC did not directly address the precise meaning of the term in the decision under review here, in a subsequent case the Commission held that the language refers to "contemporary, if not simultaneous, broadcast" of news events. John F. Donato, 66 F.C.C.2d 599, 601 (1977). This interpretation underlies the Commission's view that broadcasts delayed up to one day are presumptively exempt from the equal opportunities obligation, but that longer delays are less likely to qualify for the exemption. *fn7

Some light is shed on the meaning of the phrase "on-the-spot coverage" by the statute's use of political conventions as a paradigm for such coverage, and by the shared characteristics of the parallel exemptions granted in § 315(a). *fn8

The exemption in question developed in some measure from a congressional desire to protect news coverage of national political conventions from the equal time doctrine. *fn9 That Congress intended the exemption to reach more broadly, however, is clear from its inclusion of news events other than conventions. *fn10 Although much convention coverage is ordinarily presented live, the use of taped or filmed segments on such broadcasts is common, suggesting that on-the-spot coverage is not necessarily limited to live broadcast.

In addition, the other exempt news shows regular newscasts, documentaries, and news interviews make liberal use of previously recorded material. Admittedly, the term "on-the-spot" connotes an element of timeliness or newsworthiness. Nevertheless, it seems most unlikely that, in the absence of more specific language, Congress would have singled out on-the-spot coverage for a complete prohibition on the use of taped material. Since distorted treatment of candidates is equally possible in all four categories of exemptions, congressional concern that broadcasters might play favorites among political candidates provides no basis for distinguishing on-the-spot coverage from the other three categories. *fn11

B. The Legislative History

The exemptions to § 315's requirement of equal broadcast opportunities were enacted in 1959, immediately following a controversial FCC decision requiring broadcasters to provide equal time if a regular newscast contained coverage of a political candidate. *fn12 The purpose of the legislative action, taken before court review of the FCC decision, *fn13 was to reverse the Commission's construction of the equal opportunities requirement. *fn14 Congress feared that the Commission policy would deter broadcast licensees from covering political news by inspiring "a parade of aspirants" to seek free air time following any coverage of political campaigns. *fn15

Under the 1959 Amendments, the equal opportunities doctrine was tempered by the conviction that broadcasters should have greater freedom to perform their professional function of informing the public on current issues.

Thus, it is necessary, in the public interest, to achieve a balance between substantial equality of opportunity of political candidates on the one hand, and the need, on the other hand, of broadcasters to be free from unreasonable restraints in the exercise of their news judgment insofar as the appearance of political candidates is concerned.

H.R.Rep.No. 802, 86th Cong., 1st Sess. 4-5 (1959). *fn16 The automatic equal time provision was supplanted by a legislative directive to balance the competing interests of equal treatment of candidates and full coverage of political questions. Congress recognized that striking a proper balance would be difficult, but insisted that "(t)he difficulties which lie in the path of achieving such a balance should not be magnified to an extent where either of these principles is lost sight of." Id. at 5.

The decision to favor political discussion was made despite Congressional fears that broadcasters might abuse their position by favoring particular candidates. *fn17 The Senate Report dealt directly with this problem. Arguing that "(t)he public should not be deprived of the benefits that flow from this dynamic form of communications during the critical times of a political campaign," the Report concluded, "The public benefits (of political news coverage) are so great that they outweigh the risk that may result from the favoritism that may be shown by some partisan broadcasters." *fn18

Still, Congress was not resigned to unrestrained favoritism in the broadcast coverage of political campaigns when it amended § 315. In the first instance, it relied on the professional standards of journalistic integrity on "the maturity of our broadcasters" and their commitment "to serve the public interest." *fn19 Congress, however, also called upon the Commission to develop and enforce the policy articulated in the 1959 Amendments.

It is difficult to define with precision what is a newscast, news interview, news documentary, or on-the-spot coverage of news event or panel discussion. That is why the committee in adopting the language of the proposed legislation carefully gave the Federal Communications Commission full flexibility and complete discretion to examine the facts in each complaint . . .

. . . Based on (its expertise in broadcast regulation) and other information that it is in a position to develop, the Commission can set down some definite guidelines through rules and regulations and wherever possible by interpretations. *fn20

By responding to particular complaints of unequal treatment, and by reviewing such complaints in license renewal proceedings, the FCC was to monitor broadcasting practices. *fn21 And the Senate Report took pains to point out the broadcasts qualifying for a § 315 exemption would still be subject to the Communication Act's "public interest" standard, and would have to provide fair and objective presentation of issues. *fn22

C. The FCC Did Not Exceed Its Authority

The foregoing discussion indicates both that the statute does not on its face preclude delayed broadcasts of political events and that it confers agency discretion to strike a balance between the rival interests of the equal opportunities provision and the exemptions to § 315. *fn23

An agency's construction of open-ended provisions in its statute will prevail unless there are "compelling indications" that it has misconstrued the law. *fn24 If there is a "reasonable basis in law" and in the administrative record for the agency's position, a court will sustain that construction even though it is not "the only reasonable one, or . . . the result we would have reached had the question arisen in the first instance in judicial proceedings." Unemployment Commission v. Aragon, 329 U.S. 143, 153, 154, 67 S. Ct. 245, 91 L. Ed. 136 (1946). *fn25 Our task is not to evaluate the merits of the Commission's policy choice, but only to assure ourselves that agency action is consonant with congressional directives. This principle applies equally where, as here, we review modification of a previous policy. *fn26

The agency, however, must provide a reasoned basis for its action, fully explaining the course it has taken in light of relevant legal and policy issues. *fn27 Here, the Commission satisfied this requirement. Its view of the legislative history of the 1959 Amendments and its discretion thereunder is described in the opinion. Delaware Broadcasting Co. (supra) at 1031. After asserting that it could see "no valid reason" for distinguishing the facts in Chisholm from the delayed broadcast involved here, the FCC emphasized that broadcast coverage of political news should "reach the individual so as to permit reasonable opportunity to evaluate legally qualified candidates for public office . . . " Id. at 1032. To that end, the agency cited the need to grant broadcasters substantial discretion in determining on-the-spot political coverage. The Commission also noted that some flexibility in broadcast time is warranted to accommodate scheduling problems, particularly when a news event is broadcast across several time zones, and to deal with special concerns such as captioning for deaf viewers and delayed transmission for broadcasters with daytime-only licenses. Id. at 1032 n.8. *fn28

Nor can we agree that the Commission overstepped its legal powers in dealing with this difficult problem. By revising its interpretation of 315(a)(4), the FCC attempted to reconcile the arguably contradictory currents within the statute. The concern in the original provision for fairness to candidates confronts the congressional desire, expressed in the 1959 Amendments, to encourage coverage of political campaigns by broadcast licensees. *fn29 When such important interests must be balanced, there can be no simple, clear resolution of the matter. The range of interpretations of the on-the-spot coverage provision amply illustrated by the FCC's shifting view of it reflects the tensions within the statute. *fn30 Although that range is not unlimited, we cannot find that the Commission has exceeded its delegated authority. II. ADJUDICATION V. RULE-MAKING

In Chisholm v. FCC (supra) this court rejected the contention that the Commission improperly used an adjudicative proceeding to expand its interpretation of § 315(a)(4). The ruling in Chisholm, which involved a more drastic shift of FCC policy than that before us in this case, was based on the proposition that, absent a demonstration of abuse of discretion, an agency can reasonably determine whether to proceed by rulemaking or adjudication. 176 U.S.App.D.C. at 16, 538 F.2d at 364-65. *fn31

In ratifying the use of an adjudicative proceeding, the Chisholm court stressed that the Commission provided a reasoned opinion explaining its action, and that interested groups who were not parties to the proceeding had an opportunity to comment on the matter before the agency. 176 U.S.App.D.C. at 15, 538 F.2d at 365. Both criteria are satisfied in this case. As discussed above, the FCC's opinion presented a sound analysis of the issues involved, satisfying the requirement of the Administrative Procedure Act that agency action not be arbitrary or capricious. 5 U.S.C. § 706(2)(1976). In addition, there were seven intervenors, including petitioner, in the Commission's proceeding, providing some assurance that there was an extensive discussion of the issues before the Commission. *fn32 Indeed, the instant case may present an even stronger basis for acting through adjudication since, unlike Chisholm, the Commission here reviewed specific facts involving an attempt to provide on-the-spot news coverage. As the FCC's earlier rulings did not reach the question of delayed broadcasts under the on-the-spot exemption, adjudication of that issue was appropriate. *fn33

Accordingly, the Commission's order is


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