629 F.2d 1 | D.C. Cir. | 1980
Lead Opinion
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Concurring opinion filed by Circuit Judge TAMM.
In these consolidated appeals, the three major television networks seek review of orders by the Federal Communications Commission (FCC) finding that they had failed to fulfill their obligation under Section 312(a)(7) of the Communications Act
In October, 1979, the Carter-Mondale Presidential Committee (CMPC) asked that the three networks make available to it a half-hour of television time in early December, 1979. The networks declined to do so.
I. THE SITUATION
On October 11,1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, wrote each of the three major television networks, asking that they make available a 30-minute program slot between 8:00 PM and 10:30 PM on either December 4, 5, 6, or 7.
The networks declined to make the requested time available — saying in essence that it was too much time, too soon in the race. CBS offered to make two 5-minute segments available; one in prime time (10:55 PM) on December 8, and one in the daytime class.
On October 29,1979, CMPC filed with the FCC a complaint charging that the networks had violated their obligation to provide “reasonable access” pursuant to Section 312(a)(7). At an open meeting on November 20,1979, the Commission found by a four-to-three vote that the networks had violated Section 312(a)(7). It issued a detailed Memorandum Opinion and Order (Order I) the next day
The networks all sought reconsideration of the Commission’s decision. Their reconsideration petitions were denied, however, and on November 28, 1979, the Commission issued a second Memorandum Opinion and Order (Order II)
On November 28,1979, the networks petitioned this court for review of the FCC orders.
For reasons external to the campaign (primarily the perceived need to focus national attention on the plight of the American hostages in Iran), the Carter-Mondale Committee determined to postpone to early January the program it had planned to broadcast during the period December 4 to 7. It was still felt, however, that some time was needed in conjunction with the President’s announcement of his candidacy. Accordingly, CMPC sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. It also sought and obtained from ABC and NBC offers of time for a 30-minute program in early January, and the ABC offer was accepted. Throughout these negotiations CMPC, as well as the networks, reserved all rights relating to this appeal.
II. THE EXISTENCE OF AN AFFIRMATIVE RIGHT OF ACCESS FOR CANDIDATES SEEKING FEDERAL ELECTIVE OFFICE
In the early days of this nation, political campaigns — even presidential campaigns— were relatively simple affairs. Campaigning took the form of speeches “from stump and pulpit, of debate in the highly partisan press, of private correspondence, and of persuasive activities on election day.”
Against this backdrop, Congress passed the Federal Election Campaign Act of 1971, including as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained three significant provisions: (1) the FCC was empowered to revoke a station’s license “for willful or repeated failure to allow reasonable access to or permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for federal elective office on behalf of his candidacy;”
The networks argue that Section 312(a)(7) did not create a new right of access for federal candidates. They contend that the statute merely codified FCC policies developed prior to 1971 under the public interest standard. They cite as support for this proposition dictum from the Supreme Court decision in Columbia Broadcasting System, Inc. v. Democratic National Committee:
In 1959, as noted earlier, Congress amended § 315(a) of the Act to give statutory approval to the Commission’s Fairness Doctrine. Very recently, Congress amended § 312(a) of the 1934 Act to authorize the Commission to revoke a station license “for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.” This amendment essentially codified the Commission’s prior interpretation of § 315(a) as requiring broadcasters to make time available to political candidates.25
On the other hand, the Commission and amici argue that the plain meaning of the statutory language and the statute’s legislative history indicate that Congress did create in Section 312(a)(7) a new right of access for federal candidates.
The question is whether Section 312(a)(7) creates a right in candidates for federal elective office to advocate their candidacies by direct broadcast communication to the electorate. Such a right is properly called an affirmative right of access. It exists regardless of the actions of the broadcaster. By contrast, a contingent right of access must be activated by some
A. The Plain Language of Section 312(a)(7)
The plain language of Section 312(a)(7) authorizes the FCC to revoke a broadcaster’s license
for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.28
The provision speaks in terms of individual candidates — “a legally qualified candidate” seeking time to advocate “his candidacy.” By contrast, the Commission’s policy before Section 312(a)(7) gave no attention to individual candidates. The Commission summarized its practice prior to the adoption of Section 312(a)(7) in its Report and Order, Commission Policy in Enforcing Section 312(a)(7):
Prior to the enactment of [Section 312(a)(7)], we recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community. No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good faith judgments about the importance and interest of particular races. Based upon those judgments, licensees were to determine how much time should be made available for candidates in each race on either a paid or an unpaid basis. There was no requirement that such time be made available for specific “uses” of a broadcasting station to which Section 315 “equal opportunities” would be applicable.29
The change of focus manifested in the language of Section 312(a)(7), especially when seen against this backdrop of previous Commission policy, indicates that Congress was doing something different in that provision and supports the view that the legislators were creating a new right for individual candidates when they passed that provision.
Additionally, it is noteworthy that Section 312(a)(7) establishes an access right for candidates for federal office. The public interest doctrine, to the extent it establishes a right of access at all, does so for all offices — federal, state, and local. If Section 312(a)(7) does no more than codify the requirements of the public interest doctrine, it is peculiar that its plain language limits it to federal elections.
B. The Legislative History of Section 312(a)(7)
The legislative history of Section 312(a)(7) and of the statute in which it was passed provides support for the view that Section 312(a)(7) created an affirmative right of access for federal candidates. Section 312(a)(7) was enacted as part of Title I of the Federal Election Campaign Act of 1971. One of the primary purposes of Title I was “to give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters.”
The supporters of the provision in the Senate saw it as a means of creating a new right of access. Senator Pastore, opening the hearings before the Senate Subcommittee on Communication concerning the Act, noted that increased access could be accomplished either by repeal of Section 315 or by mandating a scheme of access.
An amendment to the second sentence of Section 315(a) which was adopted at the same time as Section 312(a)(7) lends further support to our reading of Congressional intent. Prior to 1971, the second sentence of Section 315 made clear that broadcasters were not common carriers as to an initial request by a political candidate but only as to responsive requests under the equal opportunities provision of the Section. When the Congress adopted Section 312(a)(7) in 1971, it amended the second sentence of Section 315(a) to read: “No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.” The conference reports state that the addition of the language “under this subsection” was a “conforming amendment” necessitated by the adoption of Section 312(a)(7).
While not dispositive, subsequent events also lend credence to our reading of the statute. In 1973, the Senate reviewed the results of the 1972 campaign in light of the Federal Election Reform Act of 1971. The Committee also had under consideration new bills proposing the repeal of Section 315. Then FCC Chairman Dean Burch testified concerning, among other things, the Commission’s experience with Section 312(a)(7).
Section 312(a) now requires that on the pain of license revocation a broadcaster must make available to candidates for a federal elective office reasonable amounts of paid time or reasonable access to free time.40
Dr. Stanton went even further by stating:
Section 312 grants rights to all legally qualified candidates for Federal office and as the phrase “legally qualified” has been interpreted by the FCC it includes many a fringe candidate.41
Our study of the legislative history of Section 312(a)(7) causes us to agree that it requires a broadcaster to “make available to candidates for a federal elective office reasonable amounts of paid time.”
C. The Relevance of CBS v. DNC
The strongest support for the networks’ contention that Section 312(a)(7) did not create a new right of access is dictum in the Supreme Court’s opinion in Columbia Broadcasting System, Inc. v. Democratic National Committee
The Supreme Court in CBS v. DNC held that the First Amendment does not require that citizens at large be granted access to broadcasting facilities upon request. The “essentially codified” language indicates at most the Court’s judgment that Section 312(a)(7) represents no departure from one
It is noteworthy that, in the case before us, the deference to Congress and the Commission which the Court manifested in CBS v. DNC
D. Summary of Section II
At oral argument, counsel for ABC was asked whether he would accept the proposition that Section 312(a)(7) created some right of access on the part of federal candidates at some point in the campaign. He said that he would. On further questioning from the bench, he admitted that therefore the issue of candidate access before us could be reduced to two questions: (1) when does the right of access attach, and (2) how might we decide whether the treatment accorded a given request for access is reasonable.
We agree. Our study of the language and history of Section 312(a)(7) leads us to conclude that it did create an affirmative right of access for individual candidates for federal elective office. It is the implementation of that right of access by the FCC which must now be examined.
III. THE IMPLEMENTATION BY THE FCC OF THE AFFIRMATIVE RIGHT OF ACCESS FOR CANDIDATES SEEKING FEDERAL ELECTIVE OFFICE
The networks challenge the implementation of Section 312(a)(7) by the Commission, arguing that the orders involved here are arbitrary, capricious, and contrary both to the statute and to prior FC<3 interpretations of the statute. They contend that in these cases the Commission improperly substituted its judgment for that of the broadcasters in deciding what access was reasonable.
The Commission responds that the orders are based upon reasonable standards, previously articulated. It contends that in these cases it assumed only a narrow overseer’s role — that it focused primarily on whether the broadcasters had given full consideration to all the relevant factors. It repudiates any attempt to substitute its judgment for that of the broadcasters. Rather, it claims that it confined itself to judging the objective reasonableness of the broadcasters’ actions based upon their own explanations of the bases of their decisions.
The Commission’s authority to interpret Section 312(a)(7) is not in dispute. That authority derives from Section 303(r) of the Communications Act which provides that the Commission shall “make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of the Act . . . ”
In the eight years since Section 312(a)(7) became law, the Commission has developed its interpretation of the statute, usually on a case by case basis. Only occasionally has it issued general interpretive statements.
A. Determining When the Campaign Has Begun
The networks claim a right to refuse to sell time to candidates “too early” in the campaign. In the instant case, they contend that the Carter-Mondale Presidential Committee was requesting too much time, too soon in the race. They argue that the national political conventions and the general election were too far away to justify the airtime sought by CMPC.
The Commission counters that the question of when the obligations imposed by Section 312(a)(7) attach is a threshold question which has “an inherently objective character.”
In this case, the agency looked to a variety of “objective indicia” in determining that the campaign had begun. Among the factors considered were: announcements of candidacy, the establishment of national campaign organizations, fund raising activities, endorsements, media coverage, and the progress of the delegate selection process.
It is noteworthy that the networks do not challenge the reasonableness of the indicia used by the FCC in reaching its conclusion. Nor do they challenge the reasonableness of the conclusion itself. They argue only that the agency ought not address the question at all.
The networks argue that the FCC’s decision to treat “the question of when” as one to be answered by the Commission “cannot be reconciled with” its prior statements on the issue.
ABC argues that if the FCC undertakes the task of deciding when a campaign has begun in order to enforce Section 312(a)(7), the agency will be impermissibly involved in the election process. This would be true only if the Commission sought to set a starting date for the campaign, rather than merely find that it has already begun. As described in the orders under review, the Commission’s determination of when the statutory obligations attach does not control the electoral process. To the contrary, the determination is controlled by the process.
Finally, all three networks argue that permitting the FCC to decide the “question of when” would violate their First Amendment rights. Though we reserve discussion of most of the constitutional arguments raised by the networks for a later section of this opinion,
The networks ignore the fact that by raising “the question of when” the Commission has narrowed the scope of the statute and has limited its impact on broadcasters. On its face, the statute applies to “a legally qualified candidate for Federal elective office.” It might be read as vesting rights in the individual candidate at such time as he becomes legally qualified — without regard to the stage of the campaign. By confining the applicability of Section 312(a)(7) to a period when the campaign is fully under way, the Commission has limited the statute’s impact on broadcasters.
In summary, the Commission was justified in pronouncing its right to decide when in the campaign the access rights granted to candidates by Section 312(a)(7) attach. This determination is an objective, noneditorial judgment for which the Commission is better suited than either broadcasters or candidates. The Commission was also justified in opting for a campaign-by-campaign approach to the question rather than for a uniform rule. The indicia adduced by the FCC for this campaign-by-campaign analysis are reasonable, and they were reasonably applied in this case. The Commission’s actions in this regard comported with prior FCC rulings and are constitutionally acceptable.
B. Determining Whether Reasonable Access Has Been Granted
Once the threshold determination that a campaign has begun is made by the Commission, it remains for someone to decide whether reasonable access has been granted to specific requesting candidates. The networks argue that the Commission has created a system of inconsistent standards which vitiates broadcaster discretion by overvaluing the candidate’s desires. The Commission responds that it has articulated reasonable standards which value both “broadcaster discretion and broadcaster accountability,”
Before we discuss the merits of these claims, we must consider one significant prefatory issue. From the language of Section 312(a)(7), it is not obvious whether, once the campaign has begun, the reasonableness of the access provided a candidate is to be measured from the perspective of the requestor or from that of the grantor (the broadcaster). The CMPC argues the case as if the standard were whether a reasonable request has been made.
We now turn to our discussion of the standards employed to determine whether reasonable access has been granted in specific cases.
(1) The Type of Review Conducted by the Commission in Examining a Broadcaster's Decision. All parties to this litigation pay lip-service to the concept of broadcaster discretion. The issue is: to what extent is deference paid to the editorial rights of the broadcasters by the Commission’s definition of “reasonable access?” The broadcasters say their discretion is effectively eliminated. The FCC says it preserves broadcaster discretion while seeking only broadcaster accountability. We find that the agency has succeeded in its delicate task by confining itself to a review of two questions: (1) has the broadcaster adverted to the proper standards in deciding whether to grant a request for access, and (2) is the broadcaster’s explanation for his decision reasonable in terms of those standards? Discretion remains with the broadcaster, but not discretion to act without reasonable regard to the standards.
The Commission describes the type of review it has employed for access cases as forcing the networks to take a “hard look”
We hasten, however, to note the restraints upon the reviewing tribunal that are inherent in this type of review. As Justice Harlan observed in applying the concept to reviewing courts:
The court’s responsibility is not to supplant [a] Commission’s balance of . . . these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors. Judicial review of the Commission’s orders will therefore function accurately and efficaciously only if the Commission indicates fully and carefully the methods by which, and the purpose for which, it has chosen to act . . . ,74
The Commission was correct in concluding that it should confine its role to “judging the objective reasonableness of the licensee’s determination”
The Commission has required that broadcasters file, “in response to a complaint, a full explanation of a broadcaster’s decision.” A statement of reasons is indispensable to meaningful review. If the Commission is to limit its role in determining whether the broadcaster has considered and addressed all non-frivolous matters in processing an access request, such a requirement is not only proper but also necessary.
In its 1978 Report and Order, the FCC declined to adopt formalized rules to implement Section 312(a)(7) because “there are no [such] rules which would encompass all the various circumstances possible during an election campaign.”
According to the FCC, some appropriate considerations are: (a) the individual needs of the candidate (as expressed by the candidate); (b) the amount of time previously provided to the candidate; (c) potential disruption of regular programming; (d) the number of other candidates likely to invoke equal opportunity rights if the broadcaster grants the request before him; and, (e) the timing of the request.
In its 1978 statement, the Commission stressed that the individual needs of the candidate making the request for access deserved special weight. It indicated a belief
that Federal candidates are the intended beneficiary of Section 312(a)(7) and therefore a candidate’s desires as to the method of conducting his or her media campaign should be considered by licensees in granting reasonable access.79
It went further:
A Federal candidate’s decisions as to the best method of pursuing his or her media campaign should be honored as much as possible under the ‘reasonable’ limits imposed by the licensee.80
The Commission noted that it would be particularly unreasonable for a broadcaster to
follow a policy of flatly banning access by a Federal candidate to any of the classes and lengths of program or spot time in the same periods which the station offers to commercial advertisers. We feel certain that Congress in granting Federal candidates a specific right of access to a station wished such candidates to be at least on par with commercial advertisers who have no such access rights. . . .81
Indeed, it flatly proscribed such across-the-board bans.
In its first order in the cases at hand, the Commission noted that it placed “particular emphasis” on the candidate’s needs. But it pointed out that
[i]n taking this factor into account, the licensee . . does retain some discretion to evaluate the reasonableness of*388 [the candidate’s] assessment [of his needs] in the broad sense and to weigh that factor against other factors which we have said are relevant.83
In its second order, the agency explained even more fully “how the specific nature or purpose of a particular candidate’s request should be weighed.”
In this overall weighing process, we nevertheless believe that a broadcaster should be required to demonstrate the extent to which he has attempted to tailor his offer of airtime to be as reasonably responsive as possible (given countervailing factors) to a particular candidate’s stated purpose in seeking the airtime. For example, a candidate might request an opportunity to discuss a complex set of issues important to the electorate which he believes cannot be accomplished through spot announcements or short program requests. In our view Section 312(a)(7)’s goal of encouraging electorate-informing discussion requires a broadcaster to take into account this aspect of the individual candidate’s request.86
Thus, consideration of the candidate’s needs should manifest itself in “a specific— rather than blanket — response to individual requests [which affords] greater assurance that [the] candidate’s interests cannot be ignored in the balancing process.”
The individual need of the candidate is only the first consideration advanced by the Commission to guide broadcasters in determining whether to grant a specific request for access. A second consideration is the amount of time previously provided to the candidate. Clearly, as the amount of time already provided to a candidate increases, the strength of his request for additional time decreases. This consideration merely reflects the fact that inherent in the term “reasonable access” is the notion that the broadcaster may place some limits on the amount of time it will make available to any single candidate. It follows that whatever the broadcaster’s obligation to provide access to a candidate, the obligation will be greater if the candidate has not previously been provided time.
In this respect, the networks have misinterpreted the Commission’s statements regarding the weight to be accorded a candidate’s first request. The networks argue that the FCC gives so much weight to the first request of a candidate that a first request cannot be denied. At oral argument, counsel for FCC protested that nothing in the Commission’s decisions requires that first requests be granted automatically. He contended that the Commission merely noted that, as the first request, it could not be denied on the basis that the candidate had already obtained a reasonable amount of time to satisfy the statute.
The danger of disruption is greatest, of course, in the closing days of a campaign when most, if not all, candidates will desire air time. The farther away one moves from election day, the more diluted the impact. of mandatory political “uses.” Thus, the Commission has indicated that the danger of disruption will be weighted more heavily later in the campaign.
Section 312(a)(7) operates against the background of the equal time requirements of Section 315.
We are aware that there may be situations where the number of Federal candidates in a particular election may make it impossible for a station to make prime-time program-time available. We have never held that the “prime-time, program-time” policy is absolute and inflexible. We will continue to make exceptions to this policy where circumstances dictate.92
The fifth consideration offered by the FCC to guide broadcasters faced with requests for access is the timing of the request itself. This is separate from the question of when obligations under Section 312(a)(7) attach. Here the issue is whether the candidate has given the broadcaster reasonable notice that he desires to purchase time—notice sufficient to permit the broadcaster to make the adjustments in its schedule that may be required. If a request is made months in advance, denying it is more unreasonable than it would be if it is made only days before the proposed broadcast.
Finally, the Commission has articulated an overarching consideration to which broadcasters must attend in considering a candidate’s request for time. The broadcaster must articulate with clarity the basis for his decision. He must address the five considerations just outlined when they are relevant, and he must treat any others that might bear on the individual case.
C. Applying the Standards to the Cases at Hand
We must now consider whether the record in these cases adequately supports the Commission’s conclusion that the networks failed to apply the proper standards. We hold that it does.
NBC and ABC refused to sell the Carter-Mondale Presidential Committee any time in December, saying it was too early in the campaign. The networks have not contested the reasonableness of the Commission’s finding that the campaign was in full swing. Instead, they argued that as a legal matter the Commission did not have the power to make that finding. However, we
The networks — in this regard, all three networks — displayed unreasonable disregard for the relevant standards in a second way, however. NBC and ABC, by deciding that it was too early to sell time to any candidate, had settled on what amounted to an across-the-board ban on candidate access. CBS, for its part, had in September adopted a policy of selling two five-minute spots to candidates who requested time in 1979.
ABC appears to have adopted a blanket policy of refusing to sell time to presidential candidates until January 1980 which, in view of our determination about the state of the campaign is unreasonable.99
and,
We cannot find that these reasons [advanced by CBS] are sufficient to justify a blanket refusal to sell the time; nor can we find that these reasons are sufficient to justify CBS’s policy of limiting its sales to candidates to five minute segments.100
In particular, the across-the-board policies of all three networks failed to address the needs of CMPC as stated by it — to wit, for a 30-minute block of time to present a comprehensive statement that would “kick off” the campaign in the thought-to-be crucial days of early December. The FCC did not prejudge that 30 minutes was the only reasonably responsive offer the networks could make. But it was clear 0 minutes, or 5 minutes, would not do — especially when those offers were the result of an across-the-board policy. It correctly concluded that, given their proposals, the networks could not have taken the requisite “hard look” at the relevant factors— here, especially the first factor, the specific needs of the candidate. Therefore, the Commission correctly concluded that the networks had unreasonably failed to grant access as required by Section 312(a)(7).
D. Conclusion to Section III
In these cases, the Commission’s view might be summarized as follows: the interests of broadcasters and candidates must be
Stated as it is summarized in the preceding paragraph, the Commission’s position is eminently reasonable. But the actions of the agency in these cases were not flawless. If an agency intends to demand that regulated companies consider and address all relevant factors, it must be clear and consistent in articulating those factors. Here, although the source for each of the standards pressed by the Commission can be seen with hindsight, the agency failed to headline its policy as clearly as it might have.
On the other hand, it must be said that during the course of these cases, the FCC gave the networks every opportunity to explain and justify their decisions. The Commission examined the networks’ claims with care and deference, and it articulated the reasons and rationale for its actions with clarity. Moreover, the standards employed in the orders under review here represent a very reasonable effort at implementing Section 312(a)(7). The Commission’s orders satisfy the requirements for reasoned decision-making set forth by this Circuit in Greater Boston Television Corp. v. FCC.
IV. THE CONSTITUTIONALITY OF SECTION 312(A)(7) AS IMPLEMENTED
The networks argue that Section 312(a)(7) violates the First Amendment because it impinges upon their editorial discretion, injecting the government into the decisional processes of broadcasting.
It is true that the Eighth Circuit’s decision in that case
The Supreme Court’s opinion in CBS v. DNC provides support for the limited affirmative right of access at issue here. In that case, the Court reiterated the teaching of earlier cases that the broadcaster’s editorial rights were less important than the rights of viewers and listeners.
[W]e have held that “[n]o one has a First Amendment right to a license or to monopolize a radio frequency Although the broadcaster is not without protection under the First Amendment, “[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount . . . . It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here. . . .”110
It is worth noting that the limited affirmative right of access at issue here is vested in candidates for federal office. The public’s right to be informed is nowhere stronger than in the area of elections. And, no speech is more protected than political speech.
It is settled doctrine
The agency has defined its role and the rights of the candidates in such a way as to minimize the imposition on broadcasters. As implemented, Section 312(a)(7) is a constitutionally acceptable accommodation between, on the one hand, the public’s right to be informed about elections and the right of candidates to speak and, on the other hand, the editorial rights of broadcasters.
V. THE APPLICATION OF SECTION 312(A)(7) TO THE NETWORKS
The networks argue that by its terms Section 312(a)(7) applies only to licensees— the Commission may revoke a “station license or construction permit.” Thus, they say, the Commission erred in applying the mandate of Section 312(a)(7) to the networks.
The Commission construes Section 312(a)(7) as including two severable elements — one establishing a reasonable access obligation and the other a specific remedy. It contends that the obligation element is articulated in a way that does not expressly identify the entities subject to the obligation. The obligation is “to allow reasonable
When Congress created an explicit access obligation in Section 312(a) and amended Section 315(a) to reinforce the existence of such an obligation, it did so “to give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters.”
The discussion in Congress surrounding the enactment of Section 312(a)(7) reveals that the legislators voting on the bill used the terms “broadcasting station,” “broadcaster,” “licensee,” and “network” interchangeably.
Even if Section 312(a)(7) by itself does not afford the Commission power to mandate reasonable network access, such jurisdiction is “reasonably ancillary” to the effective enforcement of the individual licensee’s Section 312(a)(7) obligations and, hence, within the Commission’s statutory authority.
the transmission of signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.125
Other substantive provisions of the Act dictate that the Commission is “to make special regulations applicable to radio stations engaged in chain broadcasting,”
The Supreme Court confirmed the broad and expansive authority of the Commission to regulate broadcasting activities in U. S. v. Southwestern Cable Co.
The Commission has reasonably found that the successful performance of [its broad responsibilities for the orderly development of an appropriate system of local television broadcasting] demands prompt and efficacious regulation of community antenna television systems. . [W]e may not, “in the absence of compelling evidence that such was Congress’ intention prohibit administrative action imperative for the achievement of an agency’s ultimate purposes.”131
The Court defined the Commission’s authority to regulate as
restricted to that reasonably ancillary to the effective performance of the Commission’s various responsibilities for the regulation of television broadcasting.132
The Commission’s action in applying Section 312(a)(7) to the networks is an exercise of its power “reasonably ancillary” to the effective enforcement of the provision.
VI. MOOTNESS
Prior to oral argument, the court asked the parties to submit papers addressing the question of mootness. The court’s request was prompted by the fact that CMPC had agreed to accept a 5-minute segment on CBS in December and had contracted to buy a 30-minute segment on ABC in January. The Petitioners, the Respondents, and CMPC as amicus curiae submitted briefs on this question. The parties unanimously contended that the case is not moot. We agree.
(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.133
Here it is clear we have a short-term situation. Moreover, it is certain that the parties will confront each other in this situation again.
In the context of elections where fragile rights are at stake, courts must be careful to avoid dismissing litigation as moot.
The “capable of repetition, yet evading review” doctrine, in the context of election cases, is appropriate when there are “as applied" challenges as well as in the more typical case involving only facial attacks [on a statute]. The construction of the statute, an understanding of its operation, and possible constitutional limits on its application, will have the effect of simplifying future challenges, thus increasing the likelihood that timely filed cases can be adjudicated before an election is held.136
That is exactly the case at hand.
VII. CONCLUSION
We hold today that Section 312(a)(7) of the Communications Act does create an affirmative right of access in candidates for federal elective office.
We hold that, in implementing this right of access, the FCC has articulated reasonable standards designed to minimize governmental intrusion into broadcasting and to maximize respect for the editorial discretion of broadcasters, while at the same time advancing the important statutory purpose of candidate access. Under these standards, the obligation (or lack thereof) of a network or licensee to provide access to a candidate for federal office is judged in two stages. First, no request for time need be granted prior to the start of the election campaign, a date determined by the Commission with reference to all relevant facts and circumstances. Second, once the campaign has begun, individual requests by candidates must be treated individually by the network or licensee. They may be denied only with advertence to factors enunciated by the Commission, and the reasons for denying the individual request must be articulated. Across the board denials will not be tolerated. The Commission, for its part, will not substitute its judgment for that of the network or licensee in handling individual requests. It will confine itself to the task of ensuring that the broadcaster has considered and addressed all the relevant factors in the individual case and that the offered explanation for the decision is reasonable.
We hold that Section 312(a)(7), thus interpreted, is consistent with the requirements of the Constitution.
We hold that the FCC is justified in applying Section 312(a)(7) to the networks.
We therefore affirm.
So ordered.
. 47 U.S.C. § 312(a)(7) (1976). Section 312(a)(7) was added to the Communications Act of 1934 as part of the Federal Election Campaign Act of 1971. Title I of that 1971 bill, which contained Section 312(a)(7), was known as the Campaign Communications Reform Act and was the broadcast reform section of the law.
. 47 U.S.C. § 312(a)(7) (1976). The relevant parts of Section 312 read in full:
(a) The Commission may revoke any station license or construction permit
(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.
. Carter-Mondale Presidential Committee, Inc., - FCC2d - (FCC 79-750, Nov. 21, 1979) (herein Order I), reconsideration denied, - FCC2d-(FCC 79-773, Nov. 28, 1979) (herein Order II). Order I is found in the Appendix (App.) at 114; Order II is at 305.
. The text of Mr. Rafshoon’s letter to the three networks was identical:
On behalf of the Carter/Mondale Presidential Committee, Inc., I am requesting availabilities for a thirty (30) minute program on ABC between 8:00 p. m. and 10:30 p. m. E.S.T. on December 4, December 5, December 6, or December 7, 1979. This program, to be run in conjunction with an announcement concerning his candidacy by President Carter for the Democratic nomination for President, consists of a documentary outlining the President’s record and that of his administration. At the time this program is aired, it may be assumed that President Carter will be a legally qualified candidate under the Communications Act of 1934, as amended, and that the President would appear on the program.
As you know, the first official contest to select delegates to the Democratic National Convention occurs January 21, 1980, in Iowa, which is 47 days after December 7, 1979, our last requested date for availabilities.
Unlike all previous Presidential election years, the news media has chosen to focus enormous attention on the Florida Caucus (October 13, 1979) and Convention (November 16-18, 1979) as well as other aspects of the 1980 campaign. As illustration, I have noted that in the six-week period from September 1 through October 9, 1979, ABC devoted 51 minutes, 22 seconds to the 1980 campaign; CBS devoted 51 minutes, 22 seconds to this subject; and NBC devoted 70 minutes. Therefore, our request for the above time seems eminently appropriate in view of the escalating political climate already generated by both print and broadcast media.
I will expect to hear from one of your sales representatives within the next week regarding a selection of times in order that we may choose a mutually agreeable date.
App. at 11-12.
.The letter to Mr. Rafshoon from Raymond E. Dillon, Director of Political Sales at CBS, was dated October 17, 1979, and read:
Dear Mr. Rafshoon:
This is in response to your request that the CBS Television Network make available for purchase by the Carter/Mondale Presidential Committee, Inc., a half-hour program in prime time to be broadcast between 8:00 and 10:30 PM EST on December 4, 5, 6 or 7, 1979. Because of the large number of present potential candidates for the Republican and Democratic presidential nominations, we are at this time unable to accede to your request to purchase a half-hour program. We note that three Democrats and eleven Republicans have already announced, or may reasonably be expected shortly to announce, their presidential candidacies; indeed two candidates for the Republican presidential nomination have already requested to purchase half-hour programs on the CBS Television Network, and their requests have been declined on the same basis as indicated below.
In light of the above circumstances, were we to provide the half-hour program you seek, accommodating potential requests for equal treatment from other candidates for presidential nomination would involve massive disruptions of the regular entertainment and information schedule of the CBS Television Network. Accordingly, we must respectfully reject your request.
We are, however, prepared to make one 5-minute segment in prime time and one 5-min-*376 ute daytime segment available for purchase by your committee. We note that this is the same offer made to the Republican candidates referred to above in response to their requests to purchase half-hour time periods. While we are unable to make available time on the dates you have specified, we are able to offer for your purchase a 5-minute period on December 8 between approximately 10:55 and 11:00 PM. We will also provide a specific 5-minute daytime availability for your purchase on request.
Since it is CBS’ policy to sell time only to announced candidates for public office, this offer is, of course, conditional upon President Carter’s having announced, or using the time purchased to announce, his presidential candidacy.
If you are interested in purchasing such a program or programs, please notify us promptly since substantial lead time of approximately four to five weeks is necessary for the editing required to accommodate program segments of this length.
Very truly yours,
App. at 19-20.
.The letter to Mr. Rafshoon from Charles C. Allen, Vice President for Sales Administration at ABC, was dated October 23, 1979, and read:
Dear Mr. Rafshoon:
This is to confirm my oral response given on October 16th to your letter of October 11, 1979 to Mr. Elton H. Rule, President of American Broadcasting Companies, Inc., requesting air time for the Carter/Mondale Presidential Committee, Inc. on December 4, 5, 6 or 7, 1979.
As we discussed, the ABC Television Network has not reached a decision as to when it will start selling political time for the 1980 Presidential campaign, and, accordingly, we are not in a position to comply with your request. As I mentioned on the telephone, I believe that later this year a decision will be made to make political time for the Presidential campaign available on ABC-TV early next year.
It was a pleasure speaking with you last week.
Sincerely yours,
App. at 17.
. Letter of Counsel for American Broadcasting, Inc., to the Chief of the Complaints and Compliance Division of the Federal Communications Commission, November 5, 1979. App. at 29.
. The letter to Mr. Rafshoon from Joseph J. Iaricci, Vice President for Sales and Administration at NBC, was dated October 23, 1979, and read:
Dear Mr. Rafshoon:
This is in response to your letter of October 11, 1979 to Mr. Fred Silverman, on behalf of the Carter/Mondale Presidential Committee, Inc., requesting 30-minute availabilities on NBC between 8:00 and 10:30 PM, EST, on December 4, 5, 6 or 7, 1979.
We have evaluated your request carefully. Based upon our experience with past campaigns, we believe it is too early in the political season for nationwide broadcast time to be made available for paid political purposes. In addition, we believe that honoring your request at this early stage of the Presidential campaign would require NBC to honor similar requests from a number of other Presidential aspirants. The impact of such an undertaking at this time is, of course, a significant factor in our decision.
Insofar as the nomination process is now focused on political activities in individual states like Iowa, you may wish to contact stations serving those particular states.
Please be assured that NBC News will continue to cover important and newsworthy aspects of President Carter’s political activities.
Very truly yours,
App. at 19.
. Carter-Mondale Presidential Committee, Inc., - FCC2d- (FCC 79-750, Nov. 21, 1979). App. at 114.
In dissent, Commissioner Lee argued that the Commission’s decision prevented the networks from exercising “their legitimate editorial judgment by rejecting the access request because of its prematurity.” App. at 140. He concluded that, therefore, the decision was “a serious abuse of the Commission’s discretion.” Id He
Commissioner Washburn wrote in dissent that the majority opinion would stand for the proposition “that the candidate’s own determination of his needs is overriding.” App. at 142. The opinion represented “the FCC’s interfering with the discretion of the broadcasters and substituting our judgment for theirs.” Id. This, he later said, “destroy[ed] the delicate balance between assuring broadcasters’ independence of journalistic discretion, affording increased opportunities for political discussion by candidates, and informing the electorate.” Id. at 339.
. -FCC2d at-; App. at 136.
. Carter-Mondale Presidential Committee, Inc., - FCC2d - (FCC 79-773, Nov. 28, 1979). App. at 305.
. The National Association of Broadcasters intervened in support of the networks. One amicus brief was submitted by the Carter-Mondale Presidential Committee, Inc. in support of the FCC. Another amicus brief was submitted jointly by the National Citizens Committee for Broadcasting, the National Black Media Coalition, Americans for Democratic Action, the United Food & Commercial Workers International Union, Stewart Rawlings Mott, The Anderson for President Committee, James L. Buckley, the National Education Association, Rep. Albert Gore, Jr., Rep. Bill Frenzel, and Jerome Barron in support of the FCC.
. A. Heard, The Costs of Democracy 401-06 (1960).
. Wick, The Federal Election Campaign Act of 1971 and Political Broadcast Reform, 22 De Paul Law Review 582 (1973).
. R. MacNeil, The People Machine 127 (1968).
. Id.
. Id. at 127-28.
. Wick, The Federal Election Campaign Act of 1971 and Political Broadcast Reform, 22 De Paul Law Review 582 (1973).
. Twentieth Century Fund, Voters’ Time, Report of the Twentieth Century Fund Commission on Campaign Costs in the Electronic Era 6 (1969).
. S. Michelson, The Election Mirror 25 (1972).
. Wick, The Federal Election Campaign Act of 1971 and Political Broadcast Reform, 22 De Paul Law Review 583 (1973).
. 47 U.S.C. § 312(a)(7) (1976).
. 47 U.S.C. § 315(b)(1) (1976).
. 47 U.S.C. § 801(1), repealed Pub.L. 93^43, title II, § 205(b), Oct. 15, 1974, 88 Stat. 1278 (1976).
. 412 U.S. 94, 113 n.I2, 93 S.Ct. 2080, 2092, 36 L.Ed.2d 772 (1972).
. B. Schmidt, Jr., Freedom of the Press v. Public Access 17 (1976).
. 47 U.S.C. § 315 (1976).
. 47 U.S.C. § 312(a)(7) (1976) (emphasis added).
. Report and Order, Commission Policy in Enforcing Section 312(a)(7), 68 FCC2d 1079 (1978).
. In their briefs and at oral argument, the networks make much of the fact that Section 312(a)(7) was enacted in the context of “a long tradition of not affording rights of access in the first instance to individual speakers.” CBS Brief at 20 (emphasis added). This observation underscores the importance of the fact that the language of Section 312(a)(7) focuses on the individual candidate. The plain language of Section 312(a)(7) clearly goes beyond FCC practice under the public interest doctrine.
.Nowhere in their briefs do the networks explain why Congress would have referred only to federal candidates if it were intent on codifying Commission practice with regard to all candidates. When asked at oral argument to explain why Congress would have limited Section 312(a)(7) to federal candidates if it were not creating a right of access that went beyond that available under the public interest doctrine, counsel for CBS had no explanation.
.S.Rep.No. 96, 92d Cong., 1st Sess. 20 (1971), reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 1773, 1774 (emphasis added). See also S.Rep.No. 229, 92d Cong., 1st Sess. 56 (1971), reprinted in [1972] U.S.Code Cong. & Admin.News, p. 1821; 117 Cong.Rec. 28792 (1971) (statement of Sen. Pastore).
The report of the Senate Commerce Committee, which provides the most detailed discussion of the 1971 Act, characterizes Section 312(a)(7) as a statutory attempt to “emphasize” the existence of an obligation to make time available to candidates in order to discourage licensees from reducing access in response to restrictions set elsewhere in the 1971 Act on the rates they could charge candidates during preelection periods. S.Rep.No. 96, supra, at 34, reprinted in U.S.Code Cong. & Admin.News at 1781-82. However, it must be said that there is no specific explanation of the statutory language or statement of its intended impact in the Senate report.
. Federal Election Campaign Act: Hearings on S. 1, S. 382, S. 596, Before Subcomm. on Communications of Senate Comm, on Commerce, 92d Cong., 1st Sess. 152 (1971).
. Id. at 348.
. H.Conf.Rep.No. 92-752, 92d Cong., 1st Sess. 22 (1971); S.Conf.Rep.No. 92-580, 92d Cong., 1st Sess. 22 (1971).
. Hearings Before the Communications Subcommittee of the Senate Committee on Commerce, 93rd Cong., 1st Sess., ser. 93-4 at 139 (1973).
. Public Notice, Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 FCC2d 510, 537-38 (1972) (emphasis supplied).
. Hearings Before the Communications Subcommittee of the Senate Committee on Commerce, 93rd Cong., 1st Sess., ser. 93-4 at 137 (1973).
. Id.
.Id. at 190.
. Id.
. Id.
. 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1972).
. Id. at 112-13, 93 S.Ct. at 2091.
. Id. at 113-14 n.12, 93 S.Ct. at 2091-92.
. CBS v. DNC, 412 U.S. at 112-13, 93 S.Ct. at 2091; see also id. at 131, 93 S.Ct. at 2100.
. 47 U.S.C. § 303(r) (1976).
. In 1978 the Commission issued a Notice of Inquiry which asked, inter alia, whether it should commence rulemaking proceedings in order to clarify licensee obligations under § 312(a)(7). 43 Fed.Reg. 12938 (March 28, 1978). Had it done so, many of the questions raised today may have been resolved. We understand its decision not to do so, however, in light of the strong opposition by petitioners and
. 68 FCC2d 1079 (1978).
. Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971).
. Carter-Mondale Presidential Committee, Inc.,-FCC2d-,-(FCC # 79-773, November 28, 1979) (Order II). App. at 315.
. Id.
. -FCC2d at-. App. at 314.
. Carter-Mondale Presidential Committee, Inc.,-FCC2d-,-(FCC # 79-750, November 21, 1979) (Order I). App. at 129-31.
. -FCC2d at-. App. at 131.
.CBS Brief at 29.
. Report and Order: Commission Policy on Enforcing Section 312(a)(7), 68 FCC2d 1079, 1091 (1978).
. Id
. Although the networks cite dictum in one decision of the Commission, Anthony R. Martin-Trigona, 66 FCC2d 968, 969 (1977) (holding that Martin-Trigona was not a “legally qualified candidate”), to support their position, they have failed to direct us to a single case where either the Commission or the Broadcast Bureau directly considered the question at hand and decided it in a way which “cannot be reconciled with” the FCC’s position in this case. Indeed, in the second Anthony R. Martin-Trigona case, 67 FCC2d 743 (1978), the Commission said that, in addressing this question, “the licensee, and ultimately the Commission must look to the circumstances of each particular case to determine when it is reasonable for a candidate’s access to begin. . . 67 FCC2d at 746 n.4.
We cannot find that the Commission was “indifferent to the rule of law” and its past precedents in deciding independently to determine the date upon which access rights accrue to federal candidates. Columbia Broadcasting System, Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971).
. As Commissioner Brown noted in his separate statement on reconsideration: “The Commission did not create this factual situation, but neither we nor the networks can ignore it.” Order II,-FCC2d-,-(1979). App. at 330.
. ABC insists that a result of the Commission’s ruling is that the candidate’s needs or desires will govern when the broadcaster must begin selling time in a campaign. See, e. g., ABC Brief at 18, 26, 30, 36, 43-46, 50. But the Commission held that the “candidates needs” is one of the considerations to be weighed by the broadcaster after a threshold determination has been made that the campaign is under way and the obligations imposed by Section 312(a)(7) have attached. See Order II, - FCC2d-,-(1979). App. at 321-24. The “candidate’s needs” play no role in determining whether Section 312(a)(7) obligations have attached.
. See Section IV infra.
. The business and commercial aspects of journalism, for example, are not immunized from regulation by first amendment considerations. See, Citizen Publishing Co. v. U. S., 394 U.S. 131, 139-140, 89 S.Ct. 927, 931-932, 22 L.Ed.2d 148 (1951) (no immunity from antitrust laws); Associated Press v. NLRB, 301 U.S. 103, 132-33, 57 S.Ct. 650, 655-56, 81 L.Ed. 953 (1937) (National Labor Relations Act held applicable to news-gathering organization). Nor
. CBS v. DNC, 412 U.S. 94, 124, 93 S.Ct. 2080, 2097, 36 L.Ed.2d 772 (1973).
. National Broadcasting Co. v. FCC, D.C.Cir., 516 F.2d 1101, 1173 (Bazelon, C. J., dissenting from the order vacating the previous order granting rehearing en banc).
. Cf. American Security Council Education Foundation v. FCC, 607 F.2d 438 (D.C.Cir. 1979), cert. denied 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642.
. Order II,-FCC2d-,-(1979). App. at 321.
. CMPC Brief at 32-34.
. Order I, - FCC2d -, - and n.16 (1979). App. at 126-27.
. Report and Order, Commission Policy on Enforcing Section 312(a)(7), 68 FCC2d 1079 (1978).
. Order I,- FCC2d-,-(1979). App. at 126.
. 444 F.2d 841, 851 (D.C.Cir.1971), cert, denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972)
. 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
. Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968). See also Burlington Truck Lines v. United States, 371 U.S. 156, 167-68, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962); WAIT Radio v. FCC, 418 F.2d 1153, 1156 (D.C.Cir.1969).
. Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1011 (D.C.Cir.1976).
. Report and Order: Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 FCC2d 1079 (1978).
. Id. at 1089.
.Id.
. Id. at 1089 n.14 (1978).
. Id. at 1090.
. Id.
. Id. at 1094.
. Order I, - FCC2d-, -(1979). App. at 126.
. Order II,-FCC2d-,-(1979).
. Id. at-. App. at 315-21.
. Id. at-. App. at 317.
. Id. at ■. App. at 322.
. Id. at . App. at 316. See also Separate Statement of Commissioner Brown,-FCC2d at-. App. at 332.
. Id. at-. App. at 317.
. Order I, - FCC2d-, -(1979). App. at 133.
. 47 U.S.C. § 315 (1976).
. Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 FCC2d 1079, 1090 (1978).
. See Section IIIB(l) supra.
. See Section IIIA supra.
. See Order I, - FCC2d -, - (1979). App. at 134.
. Id. at • — . App. at 135.
. See Section IV B(2) supra.
. CBS states that “if the circumstances of the individual candidate were required to be considered ... it would have been reasonable for CBS to make a limited offer of program time at this point, in light of the fact that President Carter enjoys unparalleled access to the media.” CBS Brief at 38. ABC makes a similar argument, ABC Brief at 55, and NBC refers to the argument in a footnote, NBC Brief at 43. These arguments ignore the plain meaning of the statute and the Commission’s interpretation of that language as articulated in Penny Manes, 42 FCC2d 878 (1973). The statute makes clear that the obligation to afford “reasonable access” can be satisfied only through the sale or gift of “use[sj” of the station and that coverage of the candidate in news programming is not sufficient. Moreover, as early as 1973, the Commission stated that “Section 312(a)(7) relates to ‘use’ of a licensee’s facilities by the candidate, not to a licensee’s coverage of a candidate’s campaign in news or public affairs programming.” Penny Manes, 42 FCC2d 878 at 882-83.
. Order II,-FCC2d —,-(1979). App. at 323 (emphasis supplied).
. Order I,-FCC2d-,-(1979). App. at 134-35 (emphasis supplied).
. 444 F.2d 841 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. At the outset, a tension in the overall argument of the networks is worth noting. On the one hand, they concede that the Congress and the FCC can require, and have required, broadcasters to grant access to political candidates as a group under the rubric of the public interest doctrine. Indeed, they cite the dictum in CBS v. DNC, 412 U.S. at 113-14 n.12, 93 S.Ct. at 2091-92 (1972), to show that the language of Section 312(a)(7) is nothing more than a codification of the public interest rule. On the other hand, they argue that the imposition of a burden of granting access to individual candidates for federal office is an impermissible interference with their editorial privileges. This seems disingenuous. The interference with editorial discretion seems no more or less under either approach.
. 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).
. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 731 (1969).
. 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1972).
. 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979).
.The Supreme Court reserved consideration of the constitutionality of a generally available affirmative right of access to cable television. 99 S.Ct. at 1446 n.19.
The heavy reliance of the networks on the dictum in CBS v. DNC regarding Section 312(a)(7) is plainly inconsistent with their arguments regarding the constitutionality of the FCC’s attempt to impose a generally available affirmative right of access to cable television. It may be that the FCC’s effort in that regard was unconstitutional — we do not as yet have a Supreme Court pronouncement on it. But the FCC’s regulations for cable television were cited approvingly in dictum appearing as text (as opposed to dictum in a footnote) in CBS v. DNC, 412 U.S. 94, 113-32, 93 S.Ct. 2080, 2091-2101, 36 L.Ed.2d 772 (1972).
. 571 F.2d 1025, 1053-57 (8th Cir. 1978), aff'd, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979).
. See Brandywine-Main Line Radio, Inc. v. Federal Communications Commission, 473 F.2d 16, 75-76 (D.C.Cir.1972) (Bazelon, Chief Judge, dissenting).
. 412 U.S. at 102, 93 S.Ct. at 2086 (1972) (citations omitted).
. See Wellington, On Freedom of Expression, 88 Yale L.J. 1105 (1979).
. See Section IIIB supra.
. See Section IIIA supra.
. Elsewhere this writer has questioned the validity of the “scarcity” rationale as a justification for regulation of the broadcast media. See, e. g., Bazelon, FCC Regulation of the Telecommunications Press, 1975 Duke Law Journal 213, 223 (1975). It must be said, however, that the “scarcity” rationale is most valid when applied to VHF television. Id. And, these comments notwithstanding, it cannot be doubted that the power of the government to allocate radio and television frequencies has been upheld. See, e. g., National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).
. See Red Lion Broadcasting v. FCC, 395 U.S. 367, 390-91, 89 S.Ct. 1794, 1806-07, 23 L.Ed.2d 371 (1969) (the First Amendment confers no right on licensees to prevent others from broadcasting on “their” frequencies and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use).
. The government practice involved here is analogous to reasonable time, place, and manner restrictions. Such restrictions have long been recognized as constitutionally acceptable. See, e. g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972); cf. Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965); Cox v. New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 763, 85 L.Ed. 1049 (1941); Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939).
. The majority shares the first amendment concerns expressed by Judge Tamm, and welcomes the admonition regarding agency conduct that is embodied in his concurring opinion.
. See note 32 supra.
. One aspect of the Commission’s interpretation of networks-licensee obligations is worth noting here. Affiliates are likely to receive access demands in addition to those resulting from network offers of political programming. For example, presidential candidates seeking time on individual stations during local primaries, congressional candidates, and candidates for state and local offices may make requests to affiliates. The Commission recognized that “some individual affiliates might reasonably decline” to carry a political broadcast supplied by the network because of such special factors. App. at 314. Such flexibility is both necessary and laudable.
. The practical consequence of network immunity from Section 312(a)(7) would be most extreme in the final days of a general presidential election. Candidates would be forced to canvas the country for stations willing to broadcast last minute appeals to the voters. Congress could not have intended such a practical bar to televised communications between presidential candidates and the national electorate on the eve of an election.
. See, e. g„ 116 Cong.Rec.R. 5717, 5719 (1970) (remarks of Sen. Pastore), 5724 (remarks of Sen. Baker), 5732 (remarks of Sen. Yarborough), 5637 (remarks of Sen. Cotton), 8056 (remarks of Rep. Martin), 8057 (remarks of Rep. MacDonald), 8069 (remarks of Rep. Springer), 8071-72 (remarks of Rep. Broyhill), 8074 (remarks of Rep. Tiernan), 8075 (remarks of Rep. Vanik), 8078 (remarks of Rep. Murphy), 8082 (remarks of Rep. Springer), and 8083 (remarks of Rep. Eckhardt).
. 117 Cong.Rec.S. 21638 (daily ed„ 92d Cong., 1st Sess., Dec. 14, 1971).
. United States v. Southwestern Cable Co., 392 U.S. 157, 178, 88 S.Ct. 1994, 2005, 20 L.Ed.2d 1001 (1968).
. 47 U.S.C. 152(a) (1976). See also National Broadcasting Company, Inc. v. United States, 319 U.S. 190, 219, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943).
. 47 U.S.C. 153(a)-(b) (1976).
. 47 U.S.C. 303(i) (1976).
. 47 U.S.C. 303(g) (1976).
. 47 U.S.C. 303(r) (1976).
. 47 U.S.C. 302a (1976).
. 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968).
. Id. at 177, 88 S.Ct. at 2005, quoting Permian Basin Area Rate Cases, 390 U.S. 747, 780, 88 S.Ct. 1344, 1366, 20 L.Ed.2d 312 (1968).
.Id. See also Mt. Mansfield TV, Inc. v. FCC, 442 F.2d 470, 480 (D.C.Cir.1971). General Telephone Co. of Calif. v. FCC, 413 F.2d 390, 403 (D.C.Cir.1969). In contrast to FCC v. Midwest Video Corp. (Midwest II), which is cited by the networks, the Commission here imposed on the targets of its ancillary jurisdiction (the networks) an obligation of a character which could be imposed on individual television licensees. Congress itself has identified reasonable access to broadcast facilities as a statutory goal. Clearly, the Commission has authority to regulate the networks “with a purpose affirmatively to promote [a] goal pursued in the regulation of television broadcasting.”
. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979), quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975).
. See, e. g., Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1968).
. 528 F.2d 124 (7th Cir. 1975).
. Storer v. Brown, 415 U.S. 724, 737 n.8, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974).
Concurrence Opinion
concurring:
When government regulation of our system of freedom of expression
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Supreme Court held that the first amendment does not always prevent the federal government from regulating radio and television broadcasts on the basis of their content. In particular, the Court endorsed the Federal Communications Commission’s “fairness doctrine,” which imposes a twofold duty on the broadcaster: “The broadcaster must give adequate coverage to public issues, and coverage must be fair in that it accurately reflects the opposing views.” Id. at 377, 89 S.Ct. at 1800 (citations omitted). In the form approved by the Supreme Court,
The Court in Red Lion also affirmed the constitutionality of three right-to-reply doctrines. Two of these, the “personal attack” and the “political editorial” rules, are administratively developed offshoots of the general fairness doctrine:
When a personal attack has been made on a figure involved in a public issue, the individual attacked himself [must] be offered an opportunity to respond. Likewise, where one candidate is endorsed in a political editorial, the other candidates must themselves be offered reply time to use personally or through a spokesman. These obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party’s side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine.
395 U.S. at 378, 89 S.Ct. at 1800. The third right-to-reply doctrine, the equal-time rule, is statutory in origin. Section 315 of the Communications Act of 1934, as amended (Act), 47 U.S.C. § 315 (1976), provides: “If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such
Under Red Lion, “the right of the viewers and listeners, not the right of the broadcasters, ... is paramount,” id. at 390, 89 S.Ct. at 1806, particularly when what is at stake is “ ‘speech concerning public affairs,’ ” id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964)). See also FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 798-800, 98 S.Ct. 2096, 2114, 56 L.Ed.2d 697 (1978). Nonetheless, the first amendment also values broadcaster discretion. As Chief Justice Burger noted in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973),
[The] role of the Government as an “overseer” and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic “free agent” call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a “tightrope” to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.
Id. at 117, 93 S.Ct. at 2094 (opinion of Burger, C. J.). As Judge Bazelon’s opinion persuasively demonstrates, the limited access scheme created by section 312(a)(7) of the Act, 47 U.S.C. § 312(a)(7) (1976), as interpreted and applied by the Commission, is consistent with these principles.
There is another principle, however, that limits the ability of the government to regulate broadcasting: although the government may play a role in regulating the content of broadcast communications, that role must be carefully neutral as to which speakers or viewpoints are to prevail in the “marketplace of ideas.” Thus, while the government may properly take action to encourage a wide-open debate on public issues,
The broadcast regulation approved in Red Lion is consonant with this first amendment principle. The basic fairness doctrine protects against government nonneutrality by leaving broad and flexible discretion with the broadcaster; the Commission’s circumscribed role in enforcing broadcaster obligations allows little opportunity for nonneutral government decisionmaking. The right-to-reply doctrines also limit the potential for partiality, this time by virtually eliminating the need for discretion on the part of anyone: if the licensee broadcasts a specified type of communication, the applicable right-to-reply obligation arises in a relatively “automatic” fashion.
Section 312(a)(7), as interpreted and applied by the Commission, presents a different and more suspect form of regulation. It is designed not to achieve a balanced presentation of ideas, but rather to grant air time to particular speakers for initial presentations of their views. The broadcaster obligation it creates, unlike that under the first prong of the fairness doctrine, is specific in nature and, as this case suggests, is likely to be enforced with some vigor.
The danger of government nonneutrality under section 312(a)(7) is exacerbated by the Commission’s emphasis, in its standards governing the right of access, on the “individual needs” of the candidate. Whether and to what extent a candidate is entitled to broadcast access depends on a weighing of his “individual needs” against the other relevant considerations detailed by the Commission. This evaluation may lead to a determination, for example, that a candidate requesting a half hour for a particular purpose may instead be entitled to only fifteen minutes, see Maj.Op. at 20-21; another candidate, on the other hand, may be found entitled to the full half hour that he seeks.
Thus, without regard to any prior broadcast coverage of opposing candidates, an agency of the federal government is authorized to decide, based in significant part on the candidate’s “individual needs,” whether and to what extent a given political candidate is entitled to be heard on the nation’s airwaves. Although the Commission’s standards are designed to apply neutrally to all candidates, and call for a rather deferential oversight of broadcaster determinations, there is nonetheless a much greater potential than in Red Lion for government favoritism, perhaps wholly unintentional, of particular speakers and ideas.
Moreover, unlike the regulatory approaches upheld in Red Lion, section 312(a)(7) deals solely with candidates for federal political office; in evaluating the danger of government nonneutrality, we cannot ignore the fact that members of the Federal Communications Commission may well have more than a passing interest in the outcome of federal elections, particularly presidential contests.
Despite these dangers, however, section 312(a)(7) makes a tremendous positive contribution to the cause of freedom of expression.
station owners and a few networks [having] unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agree[ ]. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” Associated Press v. United States, 326 U.S. 1, 20 [, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013] (1945).
395 U.S. at 392, 89 S.Ct. at 1808.
The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate*402 his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the unfettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities and their positions on vital public issues before choosing among them on election day.
Buckley v. Valeo, 424 U.S. 1, 52-53, 96 S.Ct. 612, 651, 46 L.Ed.2d 659 (1976).
Thus, section 312(a)(7), as implemented by the Commission, stands precariously on the first amendment tightrope. It raises the serious danger of nonneutral government action favoring one speaker or viewpoint over another. Yet it also makes a great contribution to the cause of encouraging an “uninhibited, robust, and wide-open”
We could not give effect to the statute’s positive contribution to first amendment values in the absence of adequate safeguards for controlling the danger of non-neutrality. In my view, the Commission’s standards for implementing section 312(a)(7), as long as they are carefully followed, are sufficient to save the statute from constitutional infirmity. In particular, the Commission is strictly limited to the narrow role of overseeing broadcaster determinations concerning access, determinations that are entitled to great deference before the Commission. Moreover, both at the broadcaster level and before the Commission on review, analysis of the “individual needs” factor must focus solely on the candidate’s needs as stated by the candidate and, giving due consideration to the other relevant standards set forth by the Commission, how those needs can be accommodated by the broadcaster. The agency is obliged to affirm any broadcaster decision that is reasonable under the Commission’s articulated standards, and it disapproved the network decisions in the present case only because the networks had, in effect, imposed “flat bans” on the sale of the type of time that the Carter-Mondale Committee sought. If the networks had instead given reasonable consideration to the particular request that was made, the Commission would have had no choice but to approve their access decisions.
The Commission, through its implementation of section 312(a)(7), has come perilously close to falling into the chasm of impermissible government action. Nonetheless, as long as the agency consistently maintains a very limited “overseer” role consistent with its obligation of careful neutrality, its action does not contravene the Constitution. With this understanding, I concur in the opinion of the court.
. See generally T. Emerson, The System of Freedom of Expression (1970).
. The Court’s decision in Red Lion did not require “approv[al] of every aspect of the fairness doctrine.” 395 U.S. at 396, 89 S.Ct. at 1809.
.“At center stage of the Commission’s regulatory scheme is its determination that broadcasters should have maximum editorial discretion in deciding how to fulfill fairness doctrine obligations.” American Security Council Educ. Foundation v. FCC, 607 F.2d 438, 445 (D.C.Cir. 1979) (en banc), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980).
. These right-to-reply doctrines would be intolerable if applied to the print media. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). A different rule applies to broadcasters on the theory that it is legitimate for the government to allocate the use of a finite number of broadcast frequencies, and it is therefore legitimate for the government to reallocate part of the use of a frequency previously granted to a particular licensee. See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 388-92, 89 S.Ct. at 1805-07. See also National Broadcasting Co. v. United States, 319 U.S. 190, 226, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943); Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 282, 53 S.Ct. 627, 635, 77 L.Ed. 1166 (1933).
. This country has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).
.There is a similar requirement of neutrality under the establishment-of-religion clause of the first amendment, in that government may not “prefer one religion over another.” Everson v. Board of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947). The requirement of religious neutrality goes further, however, by precluding the government from aiding the cause of religion generally, even if it could do so without favoring any particular religion. See id. The government is, on the other hand, permitted to further the general cause of freedom of expression. See Buckley v. Valeo, 424 U.S. 1, 92-93 & n.127, 96 S.Ct. 612, 669-670 8 n.127, 46 L.Ed.2d 659 (1976).
. Judge Bazelon analogizes the government action here under review to a “time, place, and manner” restriction. Maj. Op. at 25 n.U6. Significantly, however, such restrictions may not “ ‘slip from the neutrality of time, place, and circumstance into a concern about content.’ ” Police Dep’t v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972) (quoting Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29). Although broadcast regulation may to some extent “slip into a concern about content,” it may not lose sight of the fundamental requirement of neutrality as between particular speakers or viewpoints.
. The requirement of neutrality here, as in other contexts, may be “notoriously difficult” to define. See King’s Garden, Inc. v. FCC, 498 F.2d 51, 56 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974). At least as to its “effect” component, for example, the requirement cannot be absolute; it would be impracticable to demand that content-based regulation never operate to favor, even in the slightest degree, one viewpoint over another. See also note 9 infra. One thing is clear, however; whatever its application in other contexts, the principle of neutrality is at its zenith in the context of political speech. Difficulty of definition, of course, does not negate the importance of the basic constitutional requirement, nor does it excuse the judiciary from the task of formulating and applying fundamental principles of constitutional law.
. To be sure, even in deciding whether a fairness or a right-to-reply obligation has attached and, if so, whether it has been satisfied, the Commission might take action that improperly favors a particular speaker or viewpoint. This limited danger, however, is one that we tolerate because of the countervailing first amendment benefits that these doctrines generally produce by encouraging a balanced coverage of issues of public importance. See also note 8 supra.
. See American Security Council Educ. Foundation v. FCC, 607 F.2d 438, 444 n.16 (D.C.Cir. 1979) (en banc), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); Simmons, The Problem of “Issue" in the Administration of the Fairness Doctrine, 65 Cal.L.Rev. 546, 578-86 (1977).
. The first prong of the fairness doctrine, the obligation to devote adequate broadcast time to the coverage of public issues, has been only minimally enforced by the Commission. See Comment, Enforcing the Obligation to Present Controversial Issues: The Forgotten Half of the Fairness Doctrine, 10 Harv.C.R.-C.L.L.Rev. 137 (1975). “[T]he obligation to present controversial issues has been essentially unenforced. The Commission has consistently sought to avoid even the appearance of regulating the content of programming and thus has continually left to the licensee’s discretion the determination of which issues are sufficiently important and controversial to warrant coverage.” Id. at 153. Indeed, at least in the view of two commentators, the obligation had never been enforced prior to the Commission’s 1976 decision in Representative Patsy Mink, 59 F.C.C.2d 987 (1976). See Simmons, supra note 10, at 578-82; Comment, Power in the Marketplace of Ideas: The Fairness Doctrine and the First Amendment, 52 Tex.L.Rev. 727, 739 (1974).
. As CBS correctly observes, there is an “inherent danger in having a federal agency make determinations as to how much access and what kinds of access particular candidates should have, a danger which exists because of the risk that the agency under such circumstances could favor one candidate over another.” Reply Brief of Petitioner CBS Inc. at 14.
. CBS contends that “[t]he inherently political nature of the questions to be considered will draw the Commission into situations where its impartiality will be subject to obvious question. The danger that standards will not be applied neutrally necessarily suggests the unconstitutionality of the system of government regulation.” Brief for Petitioner CBS Inc. at 44 (citation omitted).
. In fact, due to deaths and resignations, many recent Presidents have been able to make more than one appointment per year. See Robinson, The Federal Communications Commission: An Essay on Regulatory Watchdogs, 64 Va.L.Rev. 169, 184 (1978).
. Even the limitation that no more than four Commissioners may be members of the same political party “is evaded easily if an appointee is willing to be labeled an ‘independent.’ ” Id. at 184 n.36.
.Regrettably, there is some evidence that the Commission has, on occasion, been subjected to direct political pressure. In a 1970 memorandum describing administration efforts to achieve more favorable press coverage by the three major television networks, Charles Col-son, Special Counsel to then President Richard M. Nixon, indicated that, “as soon as we have a majority,” he would pursue with Dean Burch, the newly-appointed Commission Chairman, a Commission ruling that would have “an inhibiting impact on the networks.” Memorandum from Charles W. Colson to H. R. Haldeman, Sept. 25, 1970, reprinted in Bazelon, FCC Regulation of the Telecommunications Press, 1975 Duke L.J. 213, 247. In a taped conversation in 1972, President Nixon himself threatened to use the Commission to retaliate against The Washington Post for unfavorable coverage: “The main, main thing is the Post is going to have damnable, damnable problems out of this one. They have a television station and they’re going to have to get it renewed.” Statement of Richard M. Nixon to H. R. Haldeman and John Dean, Sept. 15, 1972, quoted in S.Rep.No. 981, 93rd Cong., 2d Sess. 149 (1974) (final report of Senate Watergate committee). For a further discussion of the potential for political use of the Commission, see Comment, Enforcing the Obligation to Present Controversial Issues: The Forgotten Half of the Fairness Doctrine, 10 Harv.C.R.-C.L.L.Rev. 137, 157-58 (1975). Cf. Columbia Broadcasting Sys., Inc. v. FCC, 454 F.2d 1018, 1036 (D.C.Cir.1971) (Tamm, J., concurring) (concluding, “although hesitantly, [that in the case then under review] the Commission ha[d] taken a political role of interference contrary to all of the teachings of administrative decision-making”).
. See also Buckley v. Valeo, 424 U.S. 1, 92-93 & n.127, 96 S.Ct. 612, 669-670 8 n.127, 46 L.Ed.2d 659 (1976); note 6 supra.
. In a 1974 survey of prominent educators, businessmen, labor leaders, and government officials, television was rated the most powerful institution in the United States. The White House ranked second, the Supreme Court third. Who Runs America ? A National Survey, U.S. News & World Rep., Apr. 22, 1974, at 30. See also S. Simmons, The Fairness Doctrine and the Media 1-2 (1978).
. Cf. Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d 16, 62 (D.C.Cir.1972) (“The first amendment was never intended to protect the few while providing them with a sacrosanct sword and shield with which they could injure the many.”), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).
. See also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971) (“it can hardly be doubted that the [first amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office”).
. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). See note 5 supra.
. Another significant factor in deciding the constitutionality of § 312(a)(7), as implemented, is the presence of the equal-time provision in § 315 of the Act, 47 U.S.C. § 315 (1976). Section 315 generally will create a right to reply in favor of the opponents of any candidate granted access under § 312(a)(7), thus serving as an important safety net by mitigating the effect of any nonneutrality that might creep into the § 312(a)(7) decisionmaking process. If this were not the case, § 312(a)(7), as implemented, would raise a different and more troublesome constitutional question. That question, of course, is one for another day.