CBS, Inc. v. Federal Communications Commission

We granted certiorari to consider whether the Federal Communications Commission properly construed 47 U.S.C. § 312(a)(7) and determined that petitioners failed to provide "reasonable access to . . . the use of a broadcasting station" as required by the statute. 449 U.S. 950, 101 S.Ct. 353, 66 L.Ed.2d 213 (1980).

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On October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, requested each of the three major television networks to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on either the 4th, 5th, 6th, or 7th of December 1979.1 The Committee intended to present, in conjunction with president carter's formal announcement of his candidacy, a documentary outlining the record of his administration.

The networks declined to make the requested time available. Petitioner CBS emphasized the large number of candidates for the Republican and Democratic Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but it offered to sell two 5-minute segments to the Committee, one at 10:55 p. m. on December 8 and one in the daytime.2 Petitioner American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign,3 but subsequently indicated that it would allow such sales in January 1980. App. 58. Petitioner National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December 1979.4

On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violatedtheir obligation to provide "reasonable access" under § 312(a)(7) of the Communications Act of 1934, as amended. Title 47 U.S.C. § 312(a)(7), as added to the Act, 86 Stat. 4, states:

"The Commission may revoke any station license or

construction permit—

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"(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."

At an open meeting on November 20, 1979, the Commission, by a 4-to-3 vote, ruled that the networks had violated § 312(a)(7). In its memorandum opinion and order, the Commission concluded that the networks' reasons for refusing to sell the time requested were "deficient" under its standards of reasonableness, and directed the networks to indicate by November 26, 1979, how they intended to fulfill their statutory obligations. 74 F.C.C.2d 631.

Petitioners sought reconsideration of the FCC's decision. The reconsideration petitions were denied by the same 4-to-3 vote, and, on November 28, 1979, the Commission issued a second memorandum opinion and order clarifying its previous decision. It rejected petitioners' arguments that § 312(a)(7) was not intended to create a new right of access to the broadcast media and that the Commission had improperly substituted its judgment for that of the networks in evaluating the Carter-Mondale Presidential Committee's request for time. November 29, 1979, was set as the date for the networks to file their plans for compliance with the statute. 74 F.C.C.2d 657.

The networks, pursuant to 47 U.S.C. § 402, then petitioned for review of the Commission's orders in the United States Court of Appeals for the District of Columbia Circuit. Thecourt allowed the Committee and the National Association of broadcasters to intervene, and granted a stay of the Commission's orders pending review.

Following the seizure of American Embassy personnel in Iran, the Carter-Mondale Presidential Committee decided to postpone to early January 1980 the 30-minute program it had planned to broadcast during the period of December 4-7, 1979. However, believing that some time was needed in conjunction with the President's announcement of his candidacy, the Committee sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. In addition, the Committee sought and obtained from ABC and NBC offers of time for a 30-minute program in January, and the ABC offer eventually was accepted. Throughout these negotiations, the Committee and the networks reserved all rights relating to the appeal.

The Court of Appeals affirmed the Commission's orders, 302 U.S.App.D.C. 369, 629 F.2d 1 (1980), holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office. As to the implementation of § 312(a)(7), the court concluded that the Commission has the authority to independently evaluate whether a campaign has begun for purposes of the statute, and approved the Commission's insistence that "broadcasters consider and address all non-frivolous matters in responding to a candidate's request for time." Id., at 386, 629 F.2d, at 18. For example, a broadcaster must weigh such factors as: "(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." Id., at 387, 629 F.2d, at 19. And in reviewing a broadcaster's decision, the Commission will confine itself to 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?" Id., at 386, 629 F.2d, at 18.

Applying these principles, the Court of Appeals sustained the Commission's determination that the Presidential campaign had begun by November 1979, and, accordingly, the obligations imposed by § 312(a)(7) had attached. Further, the court decided that "the record . . . adequately supports the Commission's conclusion that the networks failed to apply the proper standards." Id., at 389, 629 F.2d, at 21. In particular, the "across-the-board" policies of all three networks failed to address the specific needs asserted by the Carter-Mondale Presidential Committee. Id., at 390, 629 F.2d, at 22. From this the court concluded that the Commission was correct in holding that the networks had violated the statute's "reasonable access" requirement.

Finally, the Court of Appeals rejected petitioners' First Amendment challenge to § 312(a)(7) as applied, reasoning that the statute as construed by the Commission "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." Id., at 389, 629 F.2d, at 25. In a concurring opinion adopted by the majority, id., at 389, n. 117, 629 F.2d, at 25, n. 117, Judge Tamm expressed the view that § 312(a)(7) is saved from constitutional infirmity "as long as the [Commission] . . . maintains a very limited 'overseer' role consistent with its obligation of careful neutrality . . . ." Id., at 402, 629 F.2d, at 34.

We consider first the scope of § 312(a)(7). Petitioners CBS and NBC contend that the statute did not impose any additional obligations on broadcasters, but merely codified prior policies developed by the Federal Communications Commission under the public interest standard. The Commission, however, argues that § 312(a)(7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office.

The Federal Election Campaign Act of 1971, which Congress enacted in 1972, included as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained the provision that was codified as 47 U.S.C. § 312(a)(7).5

We have often observed that the starting point in every case involving statutory construction is "the language employed by Congress." Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). In unambiguous language, § 312(a)(7) authorizes the Commission 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."

It is clear on the face of the statute that Congress did not prescribe merely a general duty to afford some measure of political programming, which the public interest obligation of broadcasters already provided for. Rather, § 312(a)(7) focuses on the individual "legally qualified candidate" seeking air time to advocate "his candidacy," and guarantees him "reasonable access" enforceable by specific governmental sanction. Further, the sanction may be imposed for "willful or repeated" failure to afford reasonable access. This suggests that, if a legally qualified candidate for federal office is denied a reasonable amount of broadcast time, license revocation may follow even a single instance of such denial so long as it is willful; where the denial is recurring, the penalty may be imposed in the absence of a showing of willfulness.

The command of § 312(a)(7) differs from the limited duty of broadcasters under the public interest standard. The practice preceding the adoption of § 312(a)(7) has been described by the Commission as follows:

"Prior to the enactment of the [statute], 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 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." (Footnotes omitted.) Report and Order: Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1087-1088 (1978) (1978 Report and Order).

Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time had to be given to political issues, but an individual candidate could claim no personal right of access unless his opponent used the station and no distinction was drawn between federal, state, and local elections.6 See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 534, 79 S.Ct. 1302, 1307-1308, 3 L.Ed.2d 1407 (1959). By its terms, however, § 312(a)(7) singles out legally qualified candidates for federal elective office and grants them a special right of access on an individual basis, violation of which carries the serious consequence of license revocation. The conclusion is inescapable that the statute did more than simply codify the pre-existing public interest standard.

The legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. When the subject of campaign reform was taken up by Congress in 1971, three bills were introduced in the Senate—S. 1, S. 382, and S. 956. All three measures, while differing in approach, were "intended to increase a candidate's accessibility to the media and to reduce the level of spending for its use." Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce, 92d Cong., 1st Sess., 2 (1971) (remarks of Sen. Pastore). The subsequent Report of the Senate Commerce Committee stated that one of the primary purposes of the Federal Election Campaign Act of 1971 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." S.Rep. No. 92-96, p. 20 (1971) U.S.Code Cong. & Admin.News 1972, pp. 1773, 1774 (emphasis added). The Report contained neither an explicit interpretation of the provision that became § 312(a)(7) nor a discussion of its intended impact, but simply noted:

"[The amendment] provide[s] that willful or repeated failure by a broadcast licensee to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of his station's facilities by a lagally [sic] qualified candidate for Federal elective office on behalf of his candidacy shall be grounds for adverse action by the FCC.

"The duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license. The Federal Communications Commission has recognized this obligation . . . ." Id. at 34, U.S.Code Cong. & Admin.News 1972, p. 1787.

While acknowledging the "general" public interest requirement, the Report treated it separately from the specific obligation prescribed by the proposed legislation. See also id., at 28.

As initially reported in the Senate, § 312(a)(7) applied broadly to "the use of a broadcasting station by any person who is a legally qualified candidate on behalf of his candidacy." Id., at 3. The Conference Committee confined the provision to candidates seeking federal elective office. S.Conf.Rep. No. 92-580, p. 22 (1971); H.Conf.Rep. No. 92-752, p. 22 (1971). During floor debate on the Conference Report in the House attention was called to the substantial impact § 312(a)(7) would have on the broadcasting industry:

"[B]roadcasters [are required] to permit any legally qualified candidate [for federal office] to purchase a 'reasonable amount of time' for his campaign advertising. Any broadcaster found in willful or repeated violation of this requirement could lose his license and be thrown out of business, his total record of public service notwithstanding.

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"[U]nder this provision, a broadcaster, whose license is obtained and retained on basis of performance in the public interest, may be charged with being unreasonable and, therefore, fall subject to revocation of his license." 118 Cong.Rec. 326 (1972) (remarks of Rep. Keith).

Such emphasis on the thrust of the statute would seem unnecessary if it did nothing more than reiterate the public interest standard.

Perhaps the most telling evidence of congressional intent, however, is the contemporaneous amendment of § 315(a) of the Communications Act.7 That amendment was described by the Conference Committee as a "conforming amendment" necessitated by the enactment of § 312(a)(7). S.Conf.Rep. No. 92-580, supra, at 22; H.Conf.Rep. No. 92-752, supra, at 22. Prior to the "conforming amendment," the second sentence of 47 U.S.C. § 315(a) (1970 ed.) read: "No obligation is imposed upon any licensee to allow the use of its station by any such candidate." This language made clear that broadcasters were not common carriers as to affirmative, rather than responsive, requests for access. As a result of the amendment, the second sentence now contains an important qualification: "No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate." 47 U.S.C. § 315(a) (emphasis added). Congress retreated from its statement that "no obligation" exists to afford individual access presumably because § 312(a)(7) compels such access in the context of federal elections. If § 312(a)(7) simply reaffirmed the pre-existing public interest requirement with the added sanction of license revocation, no conforming amendment to § 315(a) would have been needed.

Thus, the legislative history supports the plain meaning of the statute that individual candidates for federal elective office have a right of reasonable access to the use of stations for paid political broadcasts on behalf of their candidacies,8 without reference to whether an opponent has secured time.

We have held that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801-1802, 23 L.Ed.2d 371 (1969) (footnotes omitted). Accord, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 121, 93 S.Ct. 2080, 2095-2096, 36 L.Ed.2d 772 (1973). Such deference "is particularly appropriate where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives." United States v. Rutherford, 442 U.S. 544, 554, 99 S.Ct. 2470, 2476, 61 L.Ed.2d 68 (1979).

Since the enactment of § 312(a)(7), the Commission has consistently construed the statute as extending beyond the prior public interest policy. In 1972, the Commission made clear that § 312(a)(7) "now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office." Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 537-538 (1972) (1972 Policy Statement) (emphasis added). Accord, Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516 (1974). In its 1978 Report and Order, the Commission stated:

"When Congress enacted Section 312(a)(7), it imposed an additional obligation on the general mandate to operate in the public interest. Licensees were specifically required to afford reasonable access to or to permit the purchase of reasonable amounts of broadcast time for the 'use' of Federal candidates.

"We see no merit to the contention that Section 312(a)(7) was meant merely as a codification of the Commission's already existing policy concerning political broadcasts. There was no reason to commit that policy to statute since it was already being enforced by the Commission. . . ." 68 F.C.C.2d, at 1088.

See also 1978 Primer, 69 F.C.C.2d, at 2286-2289. The Commission has adhered to this view of the statute in its rulings on individual inquiries and complaints. See, e. g., The Labor Party, 67 F.C.C.2d 589, 590 (1978); Ken Bauder, 62 F.C.C.2d 849 (Broadcast Bureau 1976); Don C. Smith, 49 F.C.C.2d 678, 679 (Broadcast Bureau 1974); Summa Corp., 43 F.C.C.2d 602, 603-605 (1973); Robert H. Hauslein, 39 F.C.C.2d 1064, 1065 (Broadcast Bureau 1973).

Congress has been made aware of the Commission's interpretation of § 312(a)(7). In 1973, hearings were conducted to review the operation of the Federal Election Campaign Act of 1971. Federal Election Campaign Act of 1973: Hearings on S. 372 before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess. (1973). Commission Chairman Dean Burch testified regarding the agency's experience with § 312(a)(7). Id., at 136-137. He noted that the Commission's 1972 Policy Statement was "widely distributed and represented our best judgment as to the requirements of the law and the intent of Congress." Id., at 135. Chairman Burch discussed some of the difficult questions implicit in determining whether a station has afforded "reasonable access" to a candidate for federal office, and in conclusion stated: "We have brought our approach to these problems in the form of the 1972 Public Notice to the attention of Congress. If we have erred in some important construction, we would, of course, welcome congressional guidance." Id., at 137. Senator Pastore, Chairman of the Communications Subcommittee, replied:

"We didn't draw the provision any differently than we did because when you begin to legislate on guidelines, and on standards, and on criteria, you know what you run up against. I think what we did was reasonable enough, and I think what you did was reasonable enough as well.

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"I would suppose that in cases of that kind, you would get some complaints. But, frankly, I think it has worked out pretty well." Id., at 137-138.

The issue was joined when CBS Vice Chairman Frank Stanton also testified at the hearings and objected to the fact that § 312(a)(7) "grants rights to all legally qualified candidates for Federal office . . . ." Id., at 190. He strongly urged "repeal" of the statute, but his plea was unsuccessful. Ibid.9

The Commission's repeated construction of § 312(a)(7) as affording an affirmative right of reasonable access to individual candidates for federal elective office comports with the statute's language and legislative history and has received congressional review. Therefore, departure from that construction is unwarranted. "Congress' failure to repeal or revise [the statute] in the face of such administrative interpretation [is] persuasive evidence that that interpretation is the one intended by Congress." Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965).

In support of their narrow reading of § 312(a)(7) as simply a restatement of the public interest obligation, petitioners cite our decision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), which held that neither the First Amendment nor the Communications Act requires broadcasters to accept paid editorial advertisements from citizens at large. The Court in Democratic National Committee observed that "the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities," and that Congress has not altered that policy even though it has amended the Communications Act several times.