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CBS, INC., Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents,

Carter/Mondale Presidential Committee, Inc., National Association of Broadcasters, et al., Intervenors.

AMERICAN BROADCASTING COMPANIES, INC., Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents,

National Association of Broadcasters, Carter/Mondale Presidential Committee, Inc., Intervenors.

NATIONAL BROADCASTING COMPANY, INC., Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents,

Carter/Mondale Presidential Committee, Inc., National Association of Broadcasters, et al., Intervenors.

Nos. 79-2403, 79-2406 and 79-2407.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 10, 1980.

Decided March 14, 1980.

Rehearing Denied May 15, 1980.

Certiorari Granted Nov. 3, 1980. See 101 S.Ct. 353.

Three major broadcasting networks sought review of Federal Communications Commission orders finding that they failed to fulfill their obligations under Campaign Communications Reform Act to permit purchase of reasonable amounts of time for use of a broadcasting station by a legally qualified candidate for federal elective office on

behalf of his candidacy. The Court of Appeals, Bazelon, Senior Circuit Judge, held that: (1) Act created an affirmative right of access in candidates for federal elective office; (2) it was not error to implement statute on an ad hoc basis; (3) there is nothing offensive above FCC's deciding when a campaign has begun, thereby triggering right of access; (4) requiring that candidate requests be treated individually and denied only with advertence to enumerated factors, with reasons stated, was not unreasonable; (5) ban on across-the-board denials was not improper; (6) agency standard of review did not violate First Amendment rights as agency did not substitute its opinion for broadcasters; (7) statute was properly applied to networks; (8) agency determination that instant networks failed to fulfill their obligation would not be overturned; and (9) agency criteria for determining when a campaign had begun and standards to be applied by broadcasters were reasonable.

Affirmed.

Tamm, Circuit Judge, filed concurring opinion.

1. Telecommunications

437

Provision of Campaign Communications Reform Act authorizing revocation of a station license for failure to allow reasonable access to or to permit purchase of reasonable amounts of time for use of a broadcasting station by a legally qualified candidate for federal elective office on behalf of his candidacy creates an affirmative right of access in such candidates and does not merely codify prior Federal Communications Commission policy under the public interest doctrine. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312(a) (7).

2. Telecommunications - 435

Federal Communications Commission has authority to interpret provision of Campaign Communications Reform Act giving candidates for federal elective office an affirmative right of access to broadcast media. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312(a) (7).

3. Telecommunications 435

Although ad hoc, case-by-case interpretation of statutory right of access to broadcast media by candidates for federal elective office is not ideal, it could not be said that Federal Communications Commission, which only has occasionally issued general interpretive statements on the matter, was indifferent to the rule of law since all new developments in agency interpretation that have surfaced had never been without good cause, adequately explained. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312(a) (7).

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Although Federal Communications Commission has declined to define uniform limits of when a campaign has begun for purpose of affirmative right of access to the broadcast media by a candidate for federal elective office, the, FCC has not foresworn the power to do so and has not been indifferent to the rule of law its past precedence in deciding independently to determine the date upon which access rights

accrue. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312(a) (7).

5. Telecommunications 435

Only if Federal Communications Commission sought to set a starting date for an election campaign, rather than merely finding that it has already begun, would the FCC be impermissibly involved in the election process as regards enforcement of affirmative statutory right of access to broadcast media by a qualified candidate for a federal elective office; since Commission's determination of when the statutory obligation attaches, as based on a variety of objectives in issue, does not control the electoral process but, rather is controlled by the process, there is nothing offensive about such a system. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312 (a) (7).

6. Constitutional Law 90.1(9)

Not all aspects of the broadcasting business enjoy constitutional protection, as it is the editorial process that is protected. U.S.C.A. Const. Amend. 1.

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Business and commercial aspects of journalism are not immunized from regulation by First Amendment considerations. U.S.C.A. Const. Amend. 1.

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A news reporter has no First Ame: dment right to refuse to testify before a grand jury, even as to information acquired through reporting activities. U.S.C.A. Const. Amend. 1.

9. Constitutional Law 90.1(9)

Deciding whether a campaign has begun, for purpose of enforcing statutory right of access to broadcast media by a legally qualified candidate for federal elective office, is not an editorial decision for First Amendment purposes; hence, there is no constitutional objection to Federal Communications Commissions' defining the point during a campaign when the right of access attaches. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312(a) (7); U.S.C.A. Const. Amend. 1.

10. Telecommunications ~ 435

Federal Communications Commission was justified in pronouncing its right to decide at what point in a federal election campaign the right of access to broadcast media granted legally qualified candidates attached; such determination was an objective, noneditorial judgment for which the FCC was better suited than either broadcasters or candidates. Communications Act of 1934, § 312(a) (7) and amended 47 U.S.C.A. § 312(a) (7).

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In determining when a campaign had begun, for purpose of right of access to broadcast media by qualified candidates for federal elective office, the Federal Communications Commission reasonably relied on

objective indicia, including announcements of candidacy, establishment of national campaign organizations, fund-raising activities, endorsement, media coverage and progress of the delegate selection process. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312 (a) (7).

12. Telecommunications 435

Once a federal election campaign has begun, reasonableness of the access provided a candidate to the broadcast media is to be determined by reasonableness of the broadcaster's offer, with due consideration of the particular needs of the candidate. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312 (a) (7).

13. Telecommunications ~ 437

In determining whether a candidate for federal elective office has been accorded reasonable access to broadcast media the Federal Communications Commission properly confines its review to whether the broadcaster adverted to the proper standards in deciding whether to grant an access request and whether broadcaster's explanation for its decision is reasonable in terms of those standards, with discretion remaining with the broadcaster, but not discretion to act without reasonable regard to the standards. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312(a) (7).

14. Telecommunications 437

Although review employed by Federal Communications Commission in determining whether a candidate for federal elective office has been granted reasonable access to broadcast media is described by the agency as a forcing of the networks to take a "hard look" such was construed as meaning that the agency will insist that broadcasters consider and address all nonfrivolous matters in responding to a candidate's request for time, and, as such, was approved. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312 (a) (7).

15. Telecommunications 437

In determining where candidate for federal elective office has been accorded his right to reasonable access to broadcast media the Federal Communications Commission properly confined its role to judging the objective reasonableness of the licensee's determination, with the agency avoiding making its own subjective judgments or substituting its judgment for that of the broadcaster. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312(a) (7). 16. Telecommunications

437

A statement of broadcaster reasons is indispensable to meaningful review of action on application by a qualified candidate for federal elective office for access to broadcast media; if Federal Communication Commission is to limit its role in determining whether the broadcaster has considered and addressed all nonfrivolous matters in processing an access request, such a requirement is not only proper but also necessary. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A § 312 (a) (7).

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Federal Communications Commission has articulated reasonable standards to guide broadcasters in determining whether to grant a request by a candidate for federal elective office for access to broadcast media on behalf of his candidacy, to wit: individual needs of the candidate as expressed by him, amount of time previously provided to the candidate, potential disruption of regular programming, number of other candidates likely to invoke equal opportunity rights if the broadcaster grants the request before him and timing of the request. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312(a) (7).

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As amount of broadcast time already provided to a candidate for federal elective office increases, the strength of his request for additional time decreases; such consideration merely reflects the fact that inherent in the term "reasonable access" is the notion that a broadcaster may place some limits on the amount of time it will make available to any single candidate and whatever the broadcaster's obligation to provide access, the obligation is greater if the candidate has not previously been provided time. Communications Act of 1934, § 312 (a) (7) as amended 47 U.S.C.A. § 312(a) (7).

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Fact that a broadcaster may have to make some changes in program schedules is not a sufficient basis to deny an access request by a candidate for federal elective office unless those changes would amount to a substantial disruptive impact; in providing a statutory right of access, Congress envisioned a system whereby federal candidates would have access, presumably by displacing some regular programming, and only substantial disruption is entitled to weight in the balancing process. Communications Act of 1934, § 312(a) (7) as amended 37 U.S.C.A. § 312(a) (7).

20. Telecommunications 435

In view of number of candidates invoking equal opportunity rights following a broadcaster's granting a statutory access request by a candidate for federal elective office, the potential disruption might justify denying or, more likely, limiting a request for time; more often, a likelihood of large number of equal time requests might justify modification of requirements concomitant to the access right. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312 (a) (7).

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If the statutory access request by a candidate for federal elective office for broadcast time on behalf of his candidacy is made months in advance, denying it is more unreasonable than it would be if it is made only days before the proposed broadcast. Communications Act of 1934, § 312(a) (7) as amended 47 U.S.C.A. § 312(a) (7).

22. Telecommunications ~ 435

Once campaign for federal elective office has begun, individual requests by candidates for access to broadcast media must be treated

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