636 F. 2d 417 - Kennedy for President Committee v. Federal Communications Commission

Jerome J. Shestack, Philadelphia, Pa., with whom Bernard G. Segal, Philadelphia, Pa., Stephen A. Sharp, Washington, D. C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D. C., were on brief, for intervenor National Broadcasting Company, Inc.

James A. McKenna, Jr., Thomas N. Frohock and Carl R. Ramey, Washington, D. C., were on brief for intervenor American Broadcasting Companies, Inc.

J. Roger Wollenberg, Timothy B. Dyk and Michael S. Schooler, Washington, D. C., were on brief for intervenor CBS Inc.

Gene A. Bechtel, Theodore D. Frank, Mania K. Baghdadi and Eric H. Smith, Washington, D. C., were on brief for intervenor Public Broadcasting Service.

Before ROBINSON, MacKINNON and MIKVA, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

This controversy arose when, on February 13, 1980, President Carter held a press conference carried live in prime time by the four major American television networks.1 On the day following, petitioner Kennedy for President Committee complained to the networks that the President had taken advantage of the occasion for purposes of his candidacy for the 1980 presidential nomination of the Democratic party.2 Petitioner asked for "an equal opportunity" for its candidate, Senator Edward M. Kennedy, "to respond to ... calculated and damaging statements" allegedly made by the President "and to provide contrasting viewpoints...."3 Each of the networks responded negatively, whereupon petitioner turned to the Federal Communications Commission for assistance. On March 7, that agency's Broadcast Bureau denied petitioner's request,4 and on May 6, by the order now under review, the Commission sustained the Bureau's ruling.5

Petitioner challenges the Commission's decision on several grounds. Foremost are contentions that the Commission abdicated a duty to apply the equal-opportunity mandate of Section 315(a) of the Communications Act of 1934,6 and ignored an independent responsibility to accord First Amendment considerations their just due. The Commission, on the other hand, insists that its action kept faith with principles of Section 315(a) interpretation formulated in its Aspen decision7 and approved by this court,8 and that its disposition furthered the common objective of Section 315(a) and the First Amendment by encouraging maximal coverage of events envisioned by the networks as newsworthy. We agree with the Commission and affirm.9

The press conference precipitating this litigation transpired on the eve of the 1980 presidential primary in New Hampshire. Petitioner charges that the conference was staged as an integral part of President Carter's so-called "Rose Garden" campaign strategy.10 During the course of the telecast, the President was asked four questions regarding his candidacy for the Democratic presidential nomination and that of Senator Kennedy, his principal rival.11 In its protest to the networks, petitioner predicated its equal-opportunity demand on allegedly "distorted and inaccurate statements" by the President in response to queries "about Senator Kennedy's views on a number of issues."12 In turning petitioner down, each network maintained that the telecast of the conference was free of Section 315(a)'s equal-opportunity obligation because it was an activity within that section's Exemption 4 for "(o)n-the-spot coverage of bona fide news events."13

Petitioner then urged the Commission "to rule that President Carter's News Conference of February 13 constituted a 'use' of television facilities offered by the major networks and to direct the networks to afford equal time14 to Senator Kennedy...."15 Petitioner claimed that the President had "devoted more than five minutes ... to a direct attack upon Senator Kennedy,"16 with the consequence that "millions of viewers were misinformed about Senator Kennedy's views on national and international issues critical to voters in the campaign for the presidential nomination."17

The Commission's Broadcast Bureau denied petitioner's request, primarily in reliance upon the Commission's Aspen decision,18 affirmed by this court in Chisholm v. FCC.19 The Bureau concluded that the telecast fell within Aspen's holding that press conferences featuring political candidates are exempt from Section 315(a)'s equal-opportunity requirement as "on-the-spot coverage of bona fide news events."20 The Bureau felt that under Aspen the regulatory role in equal-opportunity proceedings is confined to determining "whether or not the broadcaster intends to promote the interest of a particular candidate in presenting coverage of a news event."21 Noting that petitioner had presented no evidence that the networks were not exercising good faith journalistic judgment in appraising the President's press conference as newsworthy, and detecting no indication of a purpose to favor the President's candidacy over the Senator's by televising the event,22 the Bureau rejected petitioner's plea for an order providing an opportunity to respond. The Bureau acknowledged that an incumbent President "may well have an advantage over his opponent in attracting media coverage," but declared that "absent strong evidence that broadcasters were not exercising their bona fide news judgment, the Commission will not interfere with such judgments."23 "Senator Kennedy was free," the Bureau observed, "to hold a press conference the next day or evening to rebut the President's charges."24

Four weeks later, on April 2, petitioner sought re-examination of the Bureau's ruling by the Commission. On May 6, the Commission denied petitioner's application for review.25 Since we later draw directly and heavily on the Commission's opinion, it suffices for now merely to say that essentially the Commission tracked the Bureau's reasoning, and ultimately adhered pivotally to its Aspen holding that "so long as a covered event is considered newsworthy in the good faith judgment of the broadcaster," it is encompassed by one or more of Section 315(a)'s exemptions from the duty to afford equal opportunity.26 It is the Commission's ensuing order that petitioner now brings before us.

Petitioner challenges the Commission's decision on the basis of its construction and application of Section 315(a) and on grounds attributed to the First Amendment. Within these broad categories, petitioner argues that there were factual and analytical flaws in the Commission's handling of constitutional, statutory and policy aspects of the controversy. We turn first to an examination of Section 315(a) and the Commission's treatment of the statutory issues.27 We then address the First Amendment questions raised by petitioner.28

Section 315(a) specifies broadly that "(i)f 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 candidates for that office in the use of such broadcasting station."29 "Equal opportunities" is manifestly a comprehensive term, and the Commission has given it rather full sway.30 Four types of programming, however, are statutorily deemed nonuses of a broadcasting station, and thus are exempted from this requirement.31 One-embraced by Exemption 4-immunizes the "(a) ppearance by a legally qualified candidate on any ... on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto)."32 This provision, in the Commission's view, relieved the networks of any equal-opportunity obligation consequent upon the telecasts of the President's February 13 press conference.33

The question, then, is whether the Commission properly extended Exemption 4 to that conference, and in answering we do not write on a completely clean slate. For more than two decades after enactment of Section 315(a)'s exemptions, the Commission read them as applicable only when the candidate's appearance was not the central focus of the broadcast program but was merely incidental to an event independently and already newsworthy.34 In 1964, when the Commission handed down its first ruling on candidates' press conferences, it concluded that they were not excepted from the call for equal opportunity.35 In Aspen36 in 1975, however, the Commission reversed its position, overruled the entire line of precedents the original approach had bred, and held that candidates' press conferences were encompassed by Exemption 4;37 and our decision in Chisholm38 sustained the Commission on all points.39 The only inquiry now in order is whether there was anything so peculiar about the February 13 presidential press conference as to remove it from the ambit of Aspen and Chisholm.

In Aspen, the Commission satisfied itself that its prior interpretation of Section 315(a) was based upon an erroneous reading of the legislative history of the 1959 amendments creating the four exemptions from the pre-existing equal-opportunity mandate.40 Those amendments were motivated by a congressional desire to correct the Commission's understanding and rigid application of that requirement to news programs a course, in the view of Congress, discouraging meaningful radio and television coverage of political campaigns.41 The amendments became necessary, as we observed in Chisholm, "to enable what probably ha(d) become the most important medium of political information to give the news concerning political races to the greatest possible number of citizens, and to make it possible to cover the political news to the fullest degree."42 Thus, while reaffirming its belief that the central mission of Section 315(a) was to serve as a guaranty of equal treatment of candidates for political office,43 Congress concluded that this objective must be balanced against two others no less vital: encouraging maximum coverage of all news events whether political or apolitical in nature in order to cultivate a fully informed public, and preservation of licensees' traditional independent journalistic judgment with respect to broadcasting of such events.44 To effectuate this revised statutory scheme, Congress inserted the four exemptions from Section 315(a)'s exaction of equal opportunities, and gave the Commission discretion to develop and apply them.45

Aspen marked the Commission's recognition that its original understanding that candidates' press conferences were "uses" of station facilities enabling their opponents to demand broadcast privileges for their own purposes46 was not congenial with the underlying purpose of the 1959 amendments. That construction, the Commission admitted, had caused an "undue stifling of broadcast coverage of news events involving candidates for public office."47 Accordingly, the Commission adopted the stance it deemed more in keeping with the legislative aims: that broadcasts of press conferences featuring candidates for political office qualified under Exemption 4 as "on-the-spot coverage of bona fide news events."48

We upheld the Commission's new determination in Chisholm.49 To be sure, we did not consider the legislative history of the 1959 amendments dispositive.50 But we "note(d) that it provide(d) substantial support ... for the Commission's interpretation," and "(u)nder (those) circumstances, we believe(d) it (to be) our duty to defer to the Commission's interpretation of the statute which it is charged with administering."51 Moreover, we found credible the Commission's declaration in Aspen that "any appearance by a candidate on the broadcast media is designed, to the best of the candidate's ability, to serve his own political ends."52 We thus held that the Commission acted reasonably in rejecting "the degree of control by the candidate, or the degree to which candidates tailor such events to serve their own political advantages,"53 as a criterion for ascertaining whether the equal-opportunity provision of Section 315(a) had been triggered.54

Having so concluded, we faced in Chisholm the further question whether the broadcaster's good faith judgment on newsworthiness the element deemed crucial by the Commission55 provided an acceptable measure of applicability of Section 315(a)'s exemptions. At the outset, we noted that this standard came directly from the legislative history of Section 315(a): the chairman of the House Committee had explained during debate that "(i)t sets up a test which appropriately leaves reasonable latitude for the exercise of good faith news judgment on the part of broadcasters and networks...."56 Although we did not find sufficient authority either in the reports or the debates to substantiate the proposition that Congress intended this to be the sole factor the Commission could utilize in its calculus,57 we were satisfied that Congress wished to increase broadcaster discretion as a means of maximizing coverage of campaign activity. Through an examination of other passages in the reports and debates on the 1959 amendments, we learned that Congress had expressed a willingness to grant the Commission considerable leeway in interpreting the exemptions58 and to accept some risks with respect to the equal-opportunity philosophy in order to achieve more complete broadcast coverage of newsworthy events.59 Accordingly, we upheld the Commission's revised approach.60

B. The Commission's Analysis and Application of Section 315(a)

Petitioner raises four principal objections to the Commission's handling of the statutory issues generated by this litigation. These include its use of Aspen and Chisholm as controlling precedents, the deference accorded broadcaster discretion, the burden placed on petitioners to demonstrate the absence of good faith on the part of the networks, and the Commission's refusal to consider post hoc "corrective" action.61 These we now examine in turn.1. Application of Aspen and Chisholm as Precedents

The first contention advanced by petitioner is that the Commission "woodenly applied" Aspen by improperly treating it as establishing a per se rule. Certainly we did not in Chisholm approve a per se exemption of press conferences from the equal-opportunity requirement of Section 315(a), nor do we think the Commission attempted to apply Aspen in that manner here.62

In Chisholm, we upheld the Commission's specification of three criteria to govern the decision on whether a candidate's press conference is exempt from the equal-opportunity provision. They are (1) whether the conference is broadcast live, (2) whether it is based upon the good faith determination of the broadcaster that it is a bona fide news event, and (3) whether there is evidence of broadcaster favoritism.63 It is clear enough that the Commission examined the President's February 13 press conference in each of these respects, and not in the least are we moved to impugn the conclusions the Commission reached.

There is no suggestion that in any instance the press conference was not broadcast live, nor even so much as a whisper of network bias in favor of the President. Both the Broadcast Bureau and the Commission thus correctly perceived the only issue to be whether the networks independently had exercised good faith journalistic judgment in concluding that the event was newsworthy. We move to an examination of the accuracy of the Commission's analysis of this question, and to the objections raised thereto by petitioner.

2. Good Faith Determination of a Bona Fide News Event

Petitioner contends that the Commission effectively delegated to the networks its responsibility to determine whether a particular appearance of a candidate is a "use" entitling opponents to equal opportunities. This, petitioner says, the Commission did by attaching too great a weight to the broadcasters' good faith judgment of newsworthiness.64 The flaw in this argument is that, as we have noted, this criterion proceeds directly from the legislative history of Section 315(a).65 In Chisholm, we found congressional intent to expand the role of broadcasters under Section 315(a) and to place considerable reliance on the exercise of their journalistic discretion in order to insure attainment of goals viewed as even more important than equal responsive opportunities.66

It would be pointless to restate the analysis carefully expounded in Chisholm. It is enough to say that in applying the challenged criterion the Commission pursued the course approved by this court as consistent with the legislative history and objectives.67 Thus we cannot agree with petitioner that the Commission here engaged in an unauthorized delegation of its statutory functions merely by following Aspen and Chisholm as the guiding precedents. On the contrary, the Commission quite properly honored Chisholm's teaching that "absent evidence of broadcaster intent to advance a particular candidacy, the judgment of the newsworthiness of an event is left to the reasonable news judgment of professionals."68

3. The Burden of Establishing a Prima Facie Case of Absence of Good Faith

Nor do we believe the Commission acted improperly in requiring a candidate seeking an order affording equal opportunities to come forward with evidence that the broadcaster involved did not exercise a bona fide judgment on newsworthiness in covering an appearance by his opponent.69

Petitioner has never even alleged that any of the networks failed to make or abide a good faith estimate of newsworthiness. Petitioner thus is hardly in position to complain that the evidentiary burden defined by the Commission erects an impermissible barrier to complainants attempting to assert rights under Section 315(a). At any rate, to insist upon probable cause as a precondition to administrative investigation of a claim is not at all novel;70 moreover, one of the expressed objectives of the 1959 amendments to Section 315(a) was to "afford( ) the licensee freedom to exercise his judgment in the handling of (news) program(s) despite the fact that a legally qualified candidate may appear to be heard on such a broadcast."71 Requiring a complainant to substantiate his allegations at the outset effectuates this congressional purpose by promoting fearless exercise of the discretion Congress intended broadcasters to have.72

Petitioner's apparent inability to satisfy the Commission's threshold burden allegation and corroboration of either bad faith or nonexercise of judgment on newsworthiness by the networks does not demonstrate that the standard on this score is improvident. On the contrary, it seems evident that one having a legitimate claim in this regard will ordinarily be able to point to something tending to support it.73 And we do not doubt that when a prima facie showing is made the Commission, as it has stated, will inquire into the honesty and reasonableness of a broadcaster's professed news judgment.74

Finally, on statutory grounds, petitioner urges that the actual content of a candidate's press-conference broadcast should determine whether the equal-opportunity obligation of Section 315(a) is activated. This contention is linked with the further argument that the Commission erroneously failed to consider post hoc whether remedial action should be taken to mitigate damage allegedly wrought. It seems much too late to raise these objections, for petitioner never placed a transcript or other recording of the press conference before the Commission.75 In any event, we are convinced that one of the main purposes of Section 315(a) would be frustrated by requiring the Commission to make subjective judgments on the political content of a broadcast program.76

As we have previously observed, a major goal of the 1959 amendments to Section 315(a) was preservation of broadcasters' journalistic judgment on news programming.77 Congress then decided that when broadcasters are allowed to exercise good faith discretion in evaluating the newsworthiness of candidates' appearances on the four exempted types of broadcast programs, the benefits to the public outweigh the detriments to either the public or the candidates.78 We think the Commission steers the right course in declining to undertake assessments on the political or nonpolitical nature of a candidate's appearance, even assuming that there really is much of a difference.79 As the Commission aptly stated, "to draw such distinctions would require (it) to make subjective judgments concerning content, context and potential political impact of a candidate's appearance,"80 and "(n) either Congress nor the Commission desires to expand governmental oversight of broadcasters' professional journalistic functions."81

We find eminently reasonable, too, the Commission's reading of Section 315(a) to require broadcasters to appraise newsworthiness prior to broadcast of the questioned event. Were the Commission to hinge operation of the equal-opportunity provision on after-the-fact reexamination of the event broadcast, the purposes for which Congress enacted the Section 315(a) exemptions would largely be set for naught. Broadcasters could never be sure that coverage of any given event would not later result in equal-opportunity obligations to all other candidates; resultantly, broadcaster discretion to carry or not to carry would be seriously if not fatally crippled.82 These difficulties could impede broadcasting of newsworthy events just as effectively as the Commission decisions which the 1959 amendments were designed to overturn.83

We also deem irrelevant petitioner's assertion that the questioned press conference was "orchestrated as a partisan political event designed to gain maximum political advantage in the New Hampshire primary and subsequent elections a fact recognized here and throughout the country if not at the Commission."84 When we decided Chisholm, we fully explained the insignificance of the candidate's motivation in appearing on the broadcast program.85 We perceive no good reason to reiterate the discussion here.86

We thus are unpersuaded by petitioner's statutory arguments. Together they travel several routes, but they all lead to the same destination. In a word, petitioner's objections to the Commission's analysis of Section 315(a) do not warrant reversal of the order under review. We proceed, then, to the constitutional claim.

Petitioner's First Amendment thesis is that "(p)rivate interests cannot be permitted to abridge the presentation and receipt of legitimate First Amendment expression on the basis of their own subjective values of 'bona fide' news judgment."87 Taken simply as a general proposition suitable for application in proper context, few if any expectably would disagree. What petitioner thus characterizes, however, is the Commission's deference to the journalistic judgment of broadcasters on newsworthiness of statutorily-exempted events involving candidate appearances, absent some indicium of bad faith or favoritism on the broadcaster's part. In our view, petitioner's legal premise does not fit the situation this case summons us to examine.

The First Amendment symbolizes our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."88 Indubitably, "(i)n a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we are to follow as a nation."89 So "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."90 It does not follow, however, that Senator Kennedy or any other candidate has a constitutional right of broadcast access to air his views. As the Supreme Court has admonished,

broadcast media pose unique and special problems not present in the traditional free speech case. Unlike other media, broadcasting is subject to an inherent physical limitation. Broadcast frequencies are a scarce resource; they must be portioned out among applicants. All who possess the financial resources and the desire to communicate by television or radio cannot be satisfactorily accommodated.91

Thus "it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish."92

We believe petitioner looks at the First Amendment aspect of this litigation from the wrong standpoint, for in the area of broadcasting the interest of the public is the chief concern. "It 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."93 From its inception more than a half-century ago, federal regulation of broadcasting has largely entrusted protection of that public right to short-term station licensees functioning under Commission supervision,94 and with liberty as well as responsibility to determine who may get on the air and when. The history of this era portrays Congress' consistent refusal to mandate access to the air waves on a non-selective basis95 and, contrariwise, its decision "to permit private broadcasting to develop with the widest journalistic experience consistent with its public obligations."96 The Commission has honored that policy in a series of rulings establishing that a private right to utilize the broadcaster's facilities exists only when specially conferred.97 The net of these many years of legislative and administrative oversight of broadcasting is that "(o)nly when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act."98

While Section 315(a) generally exacts for a candidate's use of broadcast facilities an equal opportunity to his opponents, Congress specifically exempted coverage of a number of arguably "political" news events in the belief that an overly-broad statutory right of access would diminish rather than augment the flow of information to the American public.99 The real question, then, is whether this legislative scheme transgresses the First Amendment interests of a candidate demanding an opportunity to respond to another candidate's statements on an excepted occasion. We think the answer is evident. As the Commission states, "Congress has chosen to enforce the public's primary right in having 'the medium function consistently with the ends and purposes of the First Amendment' by relying on broadcasters as public trustees, periodically accountable for their stewardship, to use their discretion in insuring the public's access to conflicting ideas."100 More importantly, the Supreme Court has emphasized that no "individual member of the public (has a right) to broadcast his own particular views on any matter,"101 rejecting the "view that every potential speaker is 'the best judge' of what the public ought to hear or indeed the best judge of the merits of his or her views."102 Thus,

(i)t was reasonable for Congress to conclude that the public interest in being informed requires periodic accountability on the part of those who are entrusted with the use of broadcast frequencies, scarce as they are. In the delicate balancing historically followed in the regulation of broadcasting Congress and the Commission could appropriately conclude that the allocation of journalistic priorities should be concentrated in the licensee rather than diffused among many. This policy gives the public some assurance that the broadcaster will be answerable if he fails to meet its legitimate needs. No such accountability attaches to the private individual, whose only qualifications for using the broadcast facility may be abundant funds and a point of view. To agree that debate on public issues should be "robust, and wide-open" does not mean that we should exchange "public trustee" broadcasting, with all of its limitations, for a system of self-appointed editorial commentators.103

Thus we find no merit in petitioner's First Amendment contention. With the absence also of any valid statutory objection, the order under review is

Affirmed.