CBS, INC. V. FCC, 453 U. S. 367 (1981)

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U.S. Supreme Court

CBS, Inc. v. FCC, 453 U.S. 367 (1981)

CBS, Inc. v. Federal Communications Commission

No. 80-207

Argued March 3, 1981

Decided July 1, 1981*

453 U.S. 367


Section 312 (a) (7) of the Communications Act of 1934, as added by Title I of the Federal Election Campaign Act of 1971, authorizes the Federal Communications Commission (FCC) to revoke any broadcasting 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."

On October 11, 1979, the Carter-Mondale Presidential Committee(Committee) requested each of the three major television networks (petitioners) to provide time for a 30-minute program between 8 p. m. and 10:30 p.m. on any day from the 4th through the 7th of December, 1979. 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 petitioners refused to make the requested time available. CBS emphasized the large number of candidates for the Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but offered to sell a 5-minute segment at 10:55 p.m. on December 8 and a 5-minute segment in the daytime; American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, but later indicated that it would allow such sales in January, 1980; and 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. The Committee then filed a complaint with the FCC, charging that the networks had violated their obligation to provide "reasonable access" under § 312(a)(7). The FCC ruled that the networks had violated the statute, concluding that their reasons for refusing to sell the time requested were "deficient" under the FCC's standards chanrobles.com-red

Page 453 U. S. 368

of reasonableness, and directing the networks to indicate by a specified date how they intended to fulfill their statutory obligations. On the networks' petition for review, the Court of Appeals affirmed the FCC's orders, holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office, and that the FCC has the authority to independently evaluate whether a campaign has begun for purposes of the statute. The court approved the FCC's insistence that, in responding to a candidate's request for time, broadcasters must weigh certain factors, including the individual needs of the candidate (as expressed by the candidate); the amount of time previously provided to the candidate; potential disruption of regular programming; the number of other candidates likely to invoke equal opportunity rights if the broadcaster granted the request before it; and the timing of the request. The court determined that the record supported the FCC's conclusion that the networks failed to apply the proper standards, and had thus violated the statute's "reasonable access" requirement. The court also rejected petitioners' First Amendment challenge to § 312(a)(7) as applied.


1. Section 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. It went beyond merely codifying prior FCC policies developed under the public interest standard. Pp. 453 U. S. 376-386.

(a) It is clear on the face of the statute that Congress did not prescribe simply 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 either "willful or repeated" failure to afford reasonable access. Pp. 453 U. S. 377-379.

(b) The legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. Pp. 453 U. S. 379-382.

(c) Since the enactment of § 312(a)(7), the FCC has consistently construed the statute as extending beyond the prior public interest policy, and as imposing the additional requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for federal office. This repeated construction of the statute comports with its language and legislative history, and has received congressional review, so that departure from that construction is unwarranted. Pp. 453 U. S. 382-385. chanrobles.com-red

Page 453 U. S. 369

(d) The qualified observation in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 113-114, n. 12, relied on by petitioners, that § 312(a)(7) "essentially codified" existing FCC practice was not a conclusion that the statute was in all respects coextensive with that practice, and imposed no additional duties on broadcasters. That case did not purport to rule on the precise contours of the responsibilities created by § 312(a)(7), since that issue was not before the Court. Pp. 453 U. S. 385-386.

2. Contrary to petitioners' contentions, certain of the FCC's standards to effectuate the guarantees of § 312(a)(7) -- which standards evolved principally on a case-by-case basis, and are not embodied in formalized rules -- do not contravene the statutory objectives or unduly intrude on petitioners' editorial discretion, and the statute was properly applied to petitioners in determining that they had failed to grant the "reasonable access" required by the statute. Pp. 453 U. S. 386-394.

(a) The FCC's practice of independently determining -- by examining objective evidence and considering the position of both the candidate and the networks, as well as other factors -- whether a campaign has begun and the obligations imposed by the statute have attached does not improperly involve the FCC in the electoral process or significantly impair broadcasters' editorial discretion. Nor is the FCC's standard requiring broadcasters to evaluate access requests on an individualized basis improper on the alleged ground that it attaches inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns. The FCC mandates careful consideration of, not blind assent to, candidates' desires for air time. Although the standard does proscribe blanket rules concerning access, such as a broadcaster's rule of granting only time spots of a fixed duration to all candidates, the standard is consistent with § 312(a)(7)'s guarantee of reasonable access for individual candidates for federal elective office. The FCC's standards are not arbitrary and capricious, but represent a reasoned attempt to effectuate the statute's access requirement, giving broadcasters room to exercise their discretion, but demanding that they act in good faith. Pp. 453 U. S. 388-390.

(b) On the basis of prior FCC decisions and interpretations, petitioners had adequate notice that their conduct in responding to the Committee's request for access would contravene the statute. The FCC's conclusion about the status of the campaign accorded with its announced position on the vesting of § 312(a)(7) rights, and was adequately supported by the objective factors on which it relied. And under the circumstances here, it cannot be concluded that the FCC abused its discretion in finding that petitioners failed to grant the "reasonable access" required by § 312(a)(7). Pp. 453 U. S. 390-394. chanrobles.com-red

Page 453 U. S. 370

3. The right of access to the media under § 312(a)(7), as defined by the FCC and applied here, does not violate the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion, but instead properly balances the First Amendment rights of federal candidates, the public, and broadcasters. Although the broadcasting industry is entitled under the First Amendment to exercise "the widest journalistic freedom consistent with its public [duties] ," Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 412 U. S. 110, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 390. Section 312(a)(7), which creates only a limited right of access to the media, makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process. Pp. 453 U. S. 394-397.

202 U.S.App.D.C. 369, 629 F.2d 1, affirmed.

BURGER, C.J.,delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST and STEVENS, JJ., joined, post, p. 453 U. S. 397. STEVENS, J., filed a dissenting opinion, post, p. 418. chanrobles.com-red

Page 453 U. S. 371


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