Before WRIGHT, Chief Judge, BAZELON and ROBB, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
ASSN.; PUBLIC BROADCASTING SERVICE; CBS, INC.;
ABC, INC.; NBC, INC.; THE NATIONAL
ASSOCIATION OF BROADCASTERS
DELAWARE BROADCASTING CO., INTERVENORS
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.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
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. ...