On August 11, 1980, CBS filed a petition for a writ of certiorari in he U.S. Supreme Court. Two days later ABC and NBC followed suit. The petitions in all three cases were granted on November 3, 1980, and the actions were ordered consolidated. The questions presented for review were the following: 1. Did the circuit court and the FCC correctly interpret section 312(a)(7) of the Communications Act to provide an affirmative right of access to broadcast facilities for individual candidates seeking federal elective office? 2. Did the court below and the FCC correctly find that the networks failed to provide the reasonable access required by section 312(a)(7) in the instant case? 3. Was section 312(a)(7), as interpreted by the court below and the FCC, consistent with the First Amendment and legitimate broadcaster discretion? On December 18, 1980, the three network petitioners filed separate briefs with the Supreme Court. In essence, the briefs argued: (1) that the court of appeals interpretation of section 312(a)(7) was contrary to the legislative history and plain meaning of the section, and prior FCC policy; (2) that Congress, in enacting section 312(a)(7), intended to codify existing FCC_requirements not to create a new affirmative right of access for Federal candidates; (3) that the right of access created by the FCC, and the standards employed to determine that right, were incompatible with broadcaster discretion and violated the First Amendment; and (4) that the interpretation of section 312(a)(7) by the court below and the FCC represented an improper Governmental intrusion into the electoral process, because, inter alia, the FCC had asssumed a major role in determining when a Federal election had begun. On January 23, 1981, the Government filed its brief urging affirmance of the decisions of the FCC and the court of appeals. Reply briefs were filed by CBS on February 17, 1981, by NBC on February 21, 1981, and by ABC on February 24, 1981. On March 3, 1981, the Supreme Court heard oral argument on the consolidated cases, and on July 1, 1981, in an opinion by Chief Justice Burger, the Court handed down its opinion affirming the judgment of the court of appeals. [CBS, Inc. v: Federal Communications Commission 453 U.S. 367 (1981)] Chief Justice Burger first addressed the question of whether section 312(a)(7) created an affirmative right of access for individual candidates seeking Federal elective office, as the lower court had found. His analysis of both the plain language and legislative history of the section led him to conclude that the "command of §312(a)(7) differs from the limited duty of broadcasters under the public interest standard" (slip op. at 8), and that a new affirmative right of access was created. The Chief Justice found the language of the statute to be unequivocal: 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." See 6 The public interest requirement still governs the obligations of broadcasters [Id. at 9] Chief Justice Burger also found that the legislative history of section 312(a)(7) supported his reasoning regarding the plain meaning of the statute. In reaching this conclusion, he put particular emphasis on two points: (1) the fact that the final version of the section was confined to candidates seeking Federal elective office (rather than any office); and (2) the fact that section 315(a) of the Communications Act (47 U.S.C. § 315(a)) which provides for equal opportunities in the use of broadcast stations by legally-qualified candidates for public office, was contemporaneously amended at the time section 312(a)(7) was enacted. The Chief Justice explained: 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 braodcasters 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. [Id. at 12] Chief Justice Burger also emphasized the fact that the FCC had repeatedly and consistently construed section 312(a)(7) as extending beyond the prior public interest policy. He noted further that Congress had reviewed this administrative construction-which comported with the statute's language and legislative history—and had chosen not to repeal or revise the section. According to the Chief Justice, this was persuasive evidence that the FCC's interpretation was the one intended by Congress. Chief Justice Burger next focused on the standards employed by the FCC to implement the affirmative right of access guaranteed by section 312(a)(7). At the outset, he rejected the networks' argument that by independently determining whether a campaign has begun for purposes of the section, the FCC was improperly involving itself in the political process and seriously impairing broadcaster discretion. The Chief Justice reasoned: [P]etitioners fail to recognize that the Commission does not Chief Justice Burger also dismissed the networks' contention that the FCC's requirement that broadcasters evaluate and respond to access requests on an individualized basis gave too much significance to the candidates' needs at the expense of the broadcasters' concerns and precluded uniformity in policies regarding requests for access. In the Chief Justice's view, the FCC's requirement mandated only "careful consideration of, not blind assent to, candidates' desires for air time." [Id. at 19] In sum, the Chief Justice found that the standards implemented by the FCC to effectuate section 312(a)(7) represented a reasoned attempt to balance broadcaster discretion with the requirements of good faith under the Communications Act. And, he noted, the FCC, as the administrative agency long charged with regulation of broadcasting, was entitled to judicial deference-absent compelling indications that it was wrong-in its construction of the statute. Turning to the facts of the present case, Chief Justice Burger concluded that section 312(a)(7) was properly applied to the networks and they had adequate notice that their conduct in responding to CMPC's request for time would contravene the statute. Again, he found that the FCC had not abused its discretion in finding that the networks had not granted reasonable access, and therefore refused to substitute the Court's judgment for that of the agency. Finally, the Chief Justice rejected the networks' claim that section 312(a)(7) as implemented violated the First Amendment rights of the broadcasters by circumscribing their editorial discretion. He argued that in fact one of the most important applications of the First Amendment was to assure the free flow of ideas during election campaigns and that therefore section 312(a)(7) made "a significant contribution to freedom of expression by embracing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process." [Id. at 26] He pointed out that the section did not impair the discretion of broadcasters to present their views on any issue or to carry any particular type of programming. In conclusion, Chief Justice Burger declared that: Section 312(a)(7) represents an effort by Congress to assure that an important resource-the airwaves-will be used in the public interest. We hold that the statutory right of access, as defined by the Commission and applied in these cases, properly balances the First Amendment rights of federal candidates, the public, and broadcasters. [Id. at 27] Justice White, joined by Justices Rehnquist and Stevens, filed a dissent arguing that the FCC had "seriously misconstrued the statute when it assumed that it had been given authority to insist on its own views as to reasonable access even though this entailed rejection of media judgments representing different but nevertheless reasonable reactions to access requests." [slip op. at 2 (White, J., dissenting)] In short, Justice White argued that nothing in the plain language of section 312(a)(7) created an affirmative right of access, and for the FCC to conclude that it did was an abuse of discretion which should be overturned. Justice White listed four reasons for his position. First, he contended, prior case law and other provisions of the Communications Act made it clear that the regulation of the broadcast media had been marked by a desire not to intrude on the editorial judgment of broadcasters and not to require individual rights of access: These policies have been so clear and are so obviously Second, Justice White argued, the legislative history of section 312(a)(7) not only did not support the FCC's actions in the case, but in fact had a contrary thrust. Charging that the FCC had “ignored" most of the relevant legislative history, the dissent maintained that it actually revealed that Congress merely sought to codify "what it conceived to be the pre-existing duty of the broadcasters to serve the public interest by presenting political broadcasts", and did not suggest that a new "extensive, inflexible duty to provide access" was being placed on the broadcasters. [Id. at 9] Third, Justice White claimed, the FCC had been demonstrably inconsistent in its holdings on the degree to which broadcaster editorial judgments should be subject to review and reversal, and therefore the Court owed it no special deference in its interpretation of the statute. Finally, Justice White asserted, even in the present case the FCC's two opinions were "singularly unpersuasive" and "inconsistent." According to the dissent, the FCC, together with the appeals court and the majority, reached conclusions "designed to eviscerate broadcaster discretion" [Id. at 19], particularly by holding that the reasonableness of access was to be considered from the individual candidate's perspective and according to his "needs." Justice White argued: Instead of adhering to th[e] traditional approach, the Court has laid the foundation for the unilateral right of candidates to demand and receive any "reasonable" amount of time a candidate determines to be necessary to execute a particular campaign strategy. The concomitant Commission involvement is obvious. There is no basis in the statute for this very broad and unworkable scheme of access. [Id. at 22 (footnote omitted)] Justice Stevens separately filed a brief dissent in which he maintained that the question of whether a broadcast licensee has violated section 312(a)(7) should be answered in the context of an entire political campaign, rather than by focusing on the rejection of a single request for access. Status-The case is closed. The complete text of the March 14, 1980 opinion of the circuit court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest To The Congress, March 1, 1981. The complete text of the July 1, 1981 decision of the Supreme Court is printed in the "Decisions" section of this report at page 325. United States ex rel. Joseph v. Cannon [See page 99.] XV. Prosecution for Disrupting Congressional Proceedings United States v. Roth [See page 270.] |