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

Annotate this Case

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

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

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

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.

Held:

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.

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.

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.

Page 453 U. S. 371

CHIEF JUSTICE BURGER delivered the opinion of the Court.

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 (1980).

I

A

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. [Footnote 1] The Committee

Page 453 U. S. 372

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. [Footnote 2] Petitioner

Page 453 U. S. 373

American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, [Footnote 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. [Footnote 4]

On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violated

Page 453 U. S. 374

their 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 -- "

"* * * *"

"(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. The

Page 453 U. S. 375

court 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.

B

The Court of Appeals affirmed the Commission's orders, 202 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

Page 453 U. S. 376

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.

II

We consider first the scope of § 312(a)(7). Petitioners CBS and NBC contend that the statute did not impose any

Page 453 U. S. 377

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.

A

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). [Footnote 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, 442 U. S. 337 (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

Page 453 U. S. 378

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 12(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

Page 453 U. S. 379

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. [Footnote 6] See Farmers Educational & Cooperative Union v. WDAY, Inc.,360 U. S. 525 534 (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 preexisting public interest standard.

B

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) (emphasis added). The Report contained

Page 453 U. S. 380

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. 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

Page 453 U. S. 381

thrown out of business, his total record of public service notwithstanding."

"* * * *"

"[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. [Footnote 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 preexisting public interest

Page 453 U. S. 382

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, [Footnote 8] without reference to whether an opponent has secured time.

C

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, 395 U. S. 381 (1969) (footnotes omitted). Accord, Columbia Broadcasting System, Inc. v. Democratic National Committee,412 U. S. 94, 412 U. S. 121 (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, 442 U. S. 554 (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)

Page 453 U. S. 383

(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

Page 453 U. S. 384

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."

"* * * *"

"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. [Footnote 9]

The Commission's repeated construction of § 312(a)(7) as affording an affirmative right of reasonable access to individual

Page 453 U. S. 385

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, 381 U. S. 11 (1965).

D

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 (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. Id. at 412 U. S. 113. In a footnote, on which petitioners here rely, we referred to the then recently enacted § 312(a)(7) as one such amendment, stating that it had

"essentially codified the Commission's prior interpretation of § 315(a) as requiring broadcasters to make time available to political candidates."

Id. at 412 U. S. 113-114, n. 12.

However, "the language of an opinion is not always to be parsed as though we were dealing with language of a statute." Reiter v. Sonotone Corp., 442 U.S. at 442 U. S. 341. The qualified observation that § 312(a)(7) "essentially codified" existing Commission practice was not a conclusion that the statute was in all respects coextensive with that practice, and imposed no additional duties on broadcasters. In Democratic National Committee, we did not purport to rule on the precise contours

Page 453 U. S. 386

of the responsibilities created by § 312(a)(7), since that issue was not before us. Like the general public interest standard and the equal opportunities provision of § 315(a), § 312(a)(7) reflects the importance attached to the use of the public airwaves by political candidates. Yet we now hold that § 312(a)(7) expanded on those predecessor requirements and granted a new right of access to persons seeking election to federal office. [Footnote 10]

III

A

Although Congress provided in § 312(a)(7) for greater use of broadcasting stations by federal candidates, it did not give guidance on how the Commission should implement the statute's access requirement. Essentially, Congress adopted a "rule of reason," and charged the Commission with its enforcement. Pursuant to 47 U.S.C. § 303(r), which empowers the Commission to

"[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Communications Act] ,"

the agency has developed standards to effectuate the guarantees of § 312(a)(7). See also 47 U.S.C. § 154(i). The Commission has issued some general interpretative statements, but its standards implementing § 312(a)(7) have evolved principally on a case-by-case basis, and are not embodied in formalized rules. The relevant criteria broadcasters must employ in evaluating access requests under the statute can be summarized from the Commission's 1978 Report and Order and the memorandum opinions and orders in these cases.

Broadcasters are free to deny the sale of air time prior to

Page 453 U. S. 387

the commencement of a campaign, but once a campaign has begun, they must give reasonable and good faith attention to access requests from "legally qualified" candidates [Footnote 11] for federal elective office. Such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate's stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of § 315(a). These considerations may not be invoked as pretexts for denying access; to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption -- perhaps caused by insufficient notice to allow adjustments in the schedule -- or of an excessive number of equal time requests. Further, in order to facilitate review by the Commission, broadcasters must explain their reasons for refusing time or making a more limited counter-offer. If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission's analysis would have differed in the first instance. But if broadcasters adopt "across-the-board policies" and do not attempt to respond to

Page 453 U. S. 388

the individualized situation of a particular candidate, the Commission is not compelled to sustain their denial of access. See 74 F.C.C.2d at 665-674; 74 F.C.C.2d at 642-651; 1078 Report and Order, 68 F.C.C.2d at 1089-1092, 1094. Petitioners argue that certain of these standards are contrary to the statutory objectives of § 312(a)(7).

(1)

The Commission has concluded that, as a threshold matter, it will independently determine whether a campaign has begun and the obligations imposed by § 312(a)(7) have attached. 74 F.C.C.2d at 665-666. Petitioners assert that, in undertaking such a task, the Commission becomes improperly involved in the electoral process and seriously impairs broadcaster discretion.

However, petitioners fail to recognize that the Commission does not set the starting date for a campaign. Rather, on review of a complaint alleging denial of "reasonable access," it examines objective evidence to find whether the campaign has already commenced, "taking into account the position of the candidate and the networks, as well as other factors." Id. at 665 (emphasis added). As the Court of Appeals noted, the

"determination of when the statutory obligations attach does not control the electoral process . . . the determination is controlled by the process."

202 U.S.App.D.C. at 384, 629 F.2d at 16. Such a decision is not, and cannot be, purely one of editorial judgment.

Moreover, the Commission's approach serves to narrow § 312(a)(7), which might be read as vesting access rights in an individual candidate as soon as he becomes "legally qualified" without regard to the status of the campaign. Seen 11, supra. By confining the applicability of the statute to the period after a campaign commences, the Commission has limited its impact on broadcasters and given substance to its command of reasonable access.

Page 453 U. S. 389

(2)

Petitioners also challenge the Commission's requirement that broadcasters evaluate and respond to access requests on an individualized basis. In petitioners' view, the agency has attached inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns and prohibiting the adoption of uniform policies regarding requests for access.

While admonishing broadcasters not to "second-guess' the `political' wisdom or . . . effectiveness" of the particular format sought by a candidate, the Commission has clearly acknowledged that

"the candidate's . . . request is by no means conclusive of the question of how much time, if any, is appropriate. Other . . . factors, such as the disruption or displacement of regular programming (particularly as affected by a reasonable probability of requests by other candidates) must be considered in the balance."

74 F.C.C.2d at 667-668. Thus, the Commission mandates careful consideration of, not blind assent to, candidates' desires for air time.

Petitioners are correct that the Commission's standards proscribe blanket rules concerning access; each request must be examined on its own merits. While the adoption of uniform policies might well prove more convenient for broadcasters, such an approach would allow personal campaign strategies and the exigencies of the political process to be ignored. A broadcaster's "evenhanded" response of granting only time spots of a fixed duration to candidates may be "unreasonable" where a particular candidate desires less time for an advertisement or a longer format to discuss substantive issues. In essence, petitioners seek the unilateral right to determine in advance how much time to afford all candidates. Yet § 312(a)(7) assures a right of reasonable access to individual candidates for federal elective office, and the Commission's requirement that their requests be considered on an individualized basis is consistent with that guarantee.

Page 453 U. S. 390

(3)

The Federal Communications Commission is the experienced administrative agency long entrusted by Congress with the regulation of broadcasting, and the Commission is responsible for implementing and enforcing § 312(a)(7) of the Communications Act. Accordingly, its construction of the statute is entitled to judicial deference "unless there are compelling indications that it is wrong." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381. As we held in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 120, the Commission must be allowed to

"remain in a posture of flexibility to chart a workable 'middle course' in its quest to preserve a balance between the essential public accountability and the desired private control of the media."

Like the Court of Appeals, we cannot say that the Commission's standards are arbitrary and capricious, or at odds with the language and purposes of § 312(a)(7). See 5 U.S.C. § 706(2)(A). Indeed, we are satisfied that the Commission's action represents 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. [Footnote 12]

B

There can be no doubt that the Commission's standards have achieved greater clarity as a result of the orders in these cases. [Footnote 13] However laudable that may be, it raises the question

Page 453 U. S. 391

whether § 312(a)(7) was properly applied to petitioners. [Footnote 14] Based upon the Commission's prior decisions and 1978 Report and Order, however, we must conclude that petitioners had adequate notice that their conduct in responding to the Carter-Mondale Presidential Committee's request for access would contravene the statute.

In the 1978 Report and Order, the Commission stated that it could not establish a precise point at which § 312(a)(7) obligations would attach for all campaigns, because each is unique:

"For instance, a presidential campaign may be in full swing almost a year before an election; other campaigns may be limited to a short concentrated period. . . . [W]e believe that, generally, a licensee would be unreasonable if it refused to afford access to Federal candidates at least during those time periods [when the 'lowest unit charge' provision of § 315 applied]. Moreover, it may be required to afford reasonable access before these periods; however, the determination of whether 'reasonable access' must be afforded before these periods for particular races must be made in each case under all the facts and circumstances present. . . . [W]e expect licensees to afford access at a reasonable time prior to a convention or caucus. We will review a licensee's decisions in

Page 453 U. S. 392

this area on a case-by-case basis."

68 F.C.C.2d at 1091-1092 (emphasis added). In Anthony R. Martin-Trigona, 67 F.C.C.2d 743 (1978), the Commission observed:

"[T]he licensee, and ultimately the Commission, must look to the circumstances of each particular case to determine when it is reasonable for a candidate's access to begin. . . ."

Id. at 746, n. 4 (emphasis added). Further, the 1978 Report and Order made clear that

"Federal candidates are the intended beneficiary of Section 312(a)(7), and therefore a candidate's desires as to the method of conducting his or her media campaign should be considered by licensees in granting reasonable access."

68 F.C.C.2d at 1089, n. 14. The agency also stated:

"[A]n arbitrary 'blanket' ban on the use by a candidate of a particular class or length of time in a particular period cannot be considered reasonable. A Federal candidate's decisions as to the best method of pursuing his or her media campaign should be honored as much as possible under the 'reasonable' limits imposed by the licensee."

Id. at 1090.

Here, the Carter-Mondale Presidential Committee sought broadcast time approximately 11 months before the 1980 Presidential election and 8 months before the Democratic National Convention. In determining that a national campaign was underway at that point, the Commission stressed: (a) that 10 candidates formally had announced their intention to seek the Republican nomination, and 2 candidates had done so for the Democratic nomination; (b) that various states had started the delegate selection process; (c) that candidates were traveling across the country making speeches and attempting to raise funds; (d) that national campaign organizations were established and operating; (e) that the Iowa caucus would be held the following month; (f) that public officials and private groups were making endorsements; and (g) that the national print media had given campaign

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