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).
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.
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.
On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violated
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
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, 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
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
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).
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 (1979). In unambiguous language, § 312 (a) (7) authorizes the Commission to revoke a broadcaster's license
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
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:
Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time
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
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:
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.
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,
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 (1969) (footnotes omitted). Accord Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 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, 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)
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 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.
The Commission's repeated construction of § 312 (a) (7) as affording an affirmative right of reasonable access to individual
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 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 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 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
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
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. See n. 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.
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.
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 381. As we held in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S., at 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.
There can be no doubt that the Commission's standards have achieved greater clarity as a result of the orders in these cases.
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:
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:
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
Nevertheless, petitioners ABC and NBC refused to sell the Carter-Mondale Presidential Committee any time in December 1979 on the ground that it was "too early in the political season." App. 41-43, 52-74; nn. 3 and 4, supra. These petitioners made no counteroffers, but adopted "blanket" policies refusing access despite the admonition against such an approach in the 1978 Report and Order. Cf. Donald W. Riegle, 59 F. C. C. 2d 1314 (1976); WALB-TV, Inc., 59 F. C. C. 2d 1246 (1976). Likewise, petitioner CBS, while not barring access completely, had an across-the-board policy of selling only 5-minute spots to all candidates, notwithstanding the Commission's directive in the 1978 Report and Order that broadcasters consider "a candidate's desires as to the method of conducting his or her media campaign." 68 F. C. C. 2d, at 1089, n. 14. See App. 44-45, 75-93; n. 2, supra. Petitioner CBS responded with its standard offer of separate 5-minute segments, even though the Carter-Mondale Presidential Committee sought 30 minutes of air time to present a comprehensive statement launching President Carter's re-election campaign. Moreover, the Committee's request was made almost two months before the intended date of broadcast, was flexible in that it could be satisfied with any prime time slot during a 4-day period, was accompanied by an offer to pay the normal commercial rate, and was not preceded by other requests from President Carter for access. See App. 27-40; n. 1, supra. Although petitioners adverted to the disruption of regular programming and the potential equal time requests from rival candidates in their responses to the Carter-Mondale Presidential Committee's complaint, the Commission rejected these claims as "speculative and unsubstantiated at best." 74 F. C. C. 2d, at 674.
Finally, petitioners assert that § 312 (a) (7) as implemented by the Commission violates the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion. In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S., at 117, we stated:
Petitioners argue that the Commission's interpretation of § 312 (a) (7)'s access requirement disrupts the "delicate balanc[e]" that broadcast regulation must achieve. We disagree.
A licensed broadcaster is "granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations." Office of Communication of the United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 337, 359 F.2d 994, 1003 (1966). This Court has noted the limits on a broadcast license:
See also FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 799-800 (1978). 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 110, the Court has made clear that:
The First Amendment interests of candidates and voters, as well as broadcasters, are implicated by § 312 (a) (7). We have recognized that "it is of particular importance that candidates have the . . . opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day." Buckley v. Valeo, 424 U.S. 1, 52-53 (1976). Indeed, "speech concerning public affairs is . . . the essence of self-government." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). The First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). Section 312 (a) (7) thus 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.
Petitioners are correct that the Court has never approved a general right of access to the media. See, e. g., FCC v. Midwest Vedio Corp., 440 U.S. 689 (1979); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Columbia Broadcasting System, Inc. v. Democratic National Committee, supra. Nor do we do so today. Section 312 (a) (7) creates a limited right to "reasonable" access that pertains only to legally qualified federal candidates and may be invoked by them only for the purpose of advancing their candidacies once a campaign has commenced. The Commission has stated that, in enforcing the statute, it will "provide leeway to broadcasters and not merely attempt de novo to determine the reasonableness of their judgments . . . ." 74 F. C. C. 2d, at 672. If broadcasters have considered the relevant factors in good faith, the Commission will uphold their decisions. See 202 U. S. App. D. C., at 393, 629 F. 2d, at 25. Further, § 312
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.
The judgment of the Court of Appeal is
JUSTICE WHITE, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, dissenting.
The Court's opinion is disarmingly simple and seemingly straightforward: in 1972, Congress created a right of reasonable access for candidates for federal office; the Federal Communications Commission, charged with enforcing the statute, has defined that right; as long as the agency's action is within the zone of reasonableness, it should be accepted even though a court would have preferred a different course. This approach, however, conceals the fundamental issue in these cases, which is whether Congress intended not only to create a right of reasonable access but also to negate the longstanding statutory policy of deferring to editorial judgments that are not destructive of the goals of the Act. In these cases such a policy would require acceptance of network or station decisions on access as long as they are within the range of reasonableness, even if the Commission would have preferred different responses by the networks. It is demonstrable that Congress did not intend to set aside this traditional policy, and the Commission 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. As this litigation
Section 312 (a) (7) provides that the Commission may revoke a broadcast 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 untenable to suggest that the right of access the Commission has created is required or even suggested by the plain language of this section. What is "reasonable" access and what are "reasonable" amounts of time that must be sold are matters about which fair minds could easily differ. The Commission recognized as much in this litigation: "The statutory language," it said, "does not expressly define the scope of the Commission's responsibilities or the procedures by which it should enforce them." 74 F. C. C. 2d 631, 637. Furthermore, the Commission thought "[t]he legislative history of Section 312 (a) (7) does little to clarify those responsibilities and procedures." Ibid. It also found the floor debates to be "equally uninstructive." Ibid. It then announced that "[i]n the absence of further direction, we must also assume that Congress wanted to delegate to the Commission broad responsibility to define and implement the scope of Section 312 (a) (7)'s rights and duties." Id., at 638. Having conferred carte blanche on themselves, four of the seven members of the Commission proceeded to produce some 48 printed pages of guidelines, proscriptions, prescriptions, permissions, instructions on balancing, clarifications, summaries, conclusions, and orders, all purporting to define the "reasonable" access that broadcasters must provide federal candidates for office and to explain why the networks'
1. The Commission seemed to approach this case as though Congress were legislating on a clean slate, without regard for other provisions of the Act and the manner in which those provisions had been construed and applied to avoid undue intrusions upon the editorial judgment of broadcasters and without regard for the longstanding statutory policies about access, including the recognized duty imposed on broadcasters to serve the public interest by keeping the citizenry reasonably informed about political candidates.
The history of the Federal Government's regulation of the broadcast media has been recounted by this Court on several occasions. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 103-110 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-386 (1969). That history evinces Congress' efforts to deal with the inevitable tension between the need to allocate scarce frequencies and the importance of giving licensees broad discretion in exercising editorial judgment in the use of those frequencies. These efforts have led to the creation of a general requirement that broadcast licensees operate in the public interest but that they be given considerable leeway in the fulfillment of that duty. As the Court stated in Columbia
The parties agree that prior to the adoption of § 312 (a) (7) individuals or organizations had no specific right of access to broadcast facilities. This was the common view of the Commission, the courts, and Congress. As we said in Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 122, Congress had "time and again rejected various legislative attempts that would have mandated a variety of forms of individual access." Broadcasters had obligations with respect to their programming, such as the fairness doctrine which obligated them to cover issues of public importance from opposing points of view, but this obligation was enforced with care so as not to unduly infringe on the "journalistic discretion in deciding how best to fulfill the Fairness Doctrine obligations." 412 U. S., at 111. We also observed: "[I]n the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee. Congress specifically dealt with—and firmly rejected—the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Id., at 105. Similarly, in FCC v. Midwest Video Corp., 440 U.S. 689 (1979), where we held that the Commission had erred in providing for a general system of access to cable television, we noted that the Commission's authority with respect to cable television was derived from the provisions of the Communications Act and
Broadcasters, however, had certain statutory obligations with respect to political broadcasting: As the Commission has explained, it had "recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community." Report and Order: Commission Policy in Enforcing Section 312 (a) (7) of the Communications Act, 68 F. C. C. 2d 1079, 1087-1088 (1978). Prior to the enactment of § 312 (a) (7):
The Communications Act had thus long been construed to impose upon the broadcasters a duty to satisfy the public need for information about political campaigns. As this Court observed in Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U.S. 525, 534 (1959), a broadcaster policy of "denying all candidates use of stations . . . would . . . effectively withdraw political discussion from the air," and such result would be quite contrary to congressional intent. Furthermore, § 315 had long provided that should a station permit a political candidate to use its broadcasting facilities, it must "afford equal opportunities to all other such candidates
It is therefore as clear as can be that the regulation of the broadcast media has been and is marked by a clearly defined "legislative desire to preserve values of private journalism." Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 109. The corollary legislative policy has been not to recognize or attempt to require individual rights of access to the broadcast media. These policies have been so clear and are so obviously grounded in constitutional considerations that in the absence of unequivocal legislative intent to the contrary, it should not be assumed that § 312 (a) (7) was designed to make the kind of substantial inroads in these basic considerations that the Commission has now mandated. Section 312 (a) (7) undoubtedly changed the law governing access in some respects, but the language of the section, as the Commission itself concedes, does not require the access rights the Commission has now created; and the legislative history, far from supporting the Commission's actions in these cases, has a contrary thrust.
2. The legislative history, most of which the Commission ignored, shows that Congress was well aware of the statutory and regulatory background recounted above. It also shows that Congress had no intention of working the radical change in the roles of the broadcaster and the Commission that the Commission now insists is consistent with the statutory mandate.
The initial effort to incorporate the "reasonable access" concept into the Communications Act arose in 1970 as part of a floor amendment to S. 3637, a bill designed to repeal the equal time provisions of the Act with respect to Presidential and Vice Presidential elections and to require the sale of broadcast time to be made at the "lowest unit charge" available to commercial advertisers. S. 3637, 91st Cong., 2d Sess. (1970). The amendment provided that "consistent with the other needs of the community broadcast licensees shall make
A second effort, this time by Senator Scott, to codify a "reasonable access" provision arose in the next session of Congress. That provision would have directed the Commission to promulgate regulations that would "insure that all licensees make available to legally qualified candidates for public office reasonable amounts of time for use of broadcasting stations." S. 956, 92d Cong., 2d Sess., § 302 (c) (1971). The then Chairman of the Commission testified that he understood this proposal to codify the existing obligation of broadcasters to present political broadcasts under the public interest standard. 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., 189 (1971). This proposal also was not enacted.
The third effort to codify a reasonable access standard met with success in the form of § 312 (a) (7) which the Senate Committee on Commerce added to Title I of what ultimately became the Federal Election Campaign Act of 1971. S. 382, 92d Cong., 1st Sess. (1971). The portions of this bill that addressed broadcast media included a repeal of the equal time provision of the Communications Act with respect to Presidential
The legislative history thus reveals that Congress sought to codify what it conceived to be the pre-existing duty of the broadcasters to serve the public interest by presenting political broadcasts. It also negates any suggestion that Congress believed it was creating the extensive, inflexible duty to provide access that the Commission has now fastened upon the broadcasters. This is not to say that § 312 (a) (7) did not work important changes in the law, for it did put teeth in the obligation of the broadcasters' duty to serve the public interest by providing the remedy of license revocation for willful or repeated refusals to provide a candidate for federal elective
The Commission almost totally ignored the legislative history as a possible limitation on the reach of the broadcasters' duty to provide reasonable access or upon the scope of its oversight responsibilities. The Commission did note that one of the purposes of the 1971 Act had been described as affording candidates a greater access to the broadcast media. But none of these statements indicated that this was the purpose of § 312 (a) (7), the provision at issue here. That purpose was served by other provisions of the amendments, such as the provision requiring the sale of broadcast time at the lowest unit charged during specified periods; § 312 (a) (7) itself aimed at preventing the charge limitation from reducing access that might otherwise be available.
The Commission also noted, and the Court now heavily relies on, the so-called conforming amendment to § 315 (a), the equal time provision, which then provided that "[n]o obligation is imposed upon any licensee to allow the use of its station by any such candidate." 47 U. S. C. § 315 (a) (1970 ed.). But in its original form, 48 Stat. 1088, this portion of § 315 had provided that "no obligation is hereby imposed"— the word "hereby" being omitted by the codifier of Title 47 of the United States Code. To the extent that § 315 without
In any event, the Court relies on the conforming amendment for no more than an affirmative indication that Congress intended to give individual candidates a right of reasonable access, a right that did not exist prior to the enactment of § 312 (a) (7). This much may be conceded, but nothing in this bit of legislative history, or in any other, furnishes any support for the Commission's sweeping decision in these cases. On the contrary, the legislative history negates the Commission's conclusion that it was free to so drastically limit the discretion of the broadcasters and to so radically expand its own oversight authority.
3. The Court relies, as it must, on the authority of the Commission to interpret and apply the statute and on the deference that courts should accord to agency views with respect to the legislation it is charged with enforcing. As the Court has said, however, "[t]he amount of deference due an administrative agency's interpretation of a statute . . . `will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 783, n. 13 (1981), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). I find the Commission's current radical version not only quite inconsistent with its prior views but also singularly unpersuasive.
As for its past views, the Commission's policy statement issued in 1972, shortly after the enactment of the Federal Election Campaign Act, expressed the view that the section
There was no suggestion in 1972 that the "needs" of the requesting candidate shall be paramount. Indeed, the Commission embraced its prior practice. Discretion was thought to remain with the broadcaster, not to be placed in the hands of the candidates or subjected to close and exacting oversight by the Commission. Clearly, the Commission's contemporaneous construction of § 312 (a) (7) is inconsistent with the sweeping construction of the section it has now adopted. See Udall v. Tallman, 380 U.S. 1, 16 (1965).
After a detailed examination of the question, the Commission concluded:
The Commission went on to suggest some very broad guidelines it considered essential in effectuating the intent of Congress under § 312 (a) (7). For example, candidates generally were to be afforded some access to prime time, and access was to be flexible, including the possibility of program time and "spot" announcements. Candidates were not entitled, however, "to a particular placement of his or her political announcement
In terms of the degree to which broadcaster editorial judgments should be subject to review and reversal by the Commission— the most important issue in this litigation—it is evident that the Commission has been quite inconsistent. Its present radical interpretation of § 312 (a) (7) plainly rejects its earlier and more contemporaneous pronouncements as to the meaning and scope of the broadcasters' duties and of its own authority under § 312 (a) (7).
4. Equally, if not more fundamental, the Commission's opinions in this case are singularly unpersuasive. They contain a plethora of admonitions to the broadcast industry, some quite vague and others very specific but often inconsistent. Altogether, in operation and effect, they represent major departures from prior practice, from prior decisions, including those of this Court, and from congressionally recognized policies underlying the Federal Communications Act. As I have indicated, we should not endorse them without much clearer congressional direction than is apparent in the actions leading to the adoption of § 312 (a) (7). I shall mention
4a. The Commission stated in a footnote that it should not differ with broadcaster decisions with respect to a candidate's access unless "`arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,'" an approach reflecting its traditional stance vis-a-vis the broadcasters. 74 F. C. C. 2d, at 642, n. 16. The Commission had already determined, however, that because § 312 (a) (7) was not self-explanatory on its face and because it failed to find explicit guidance to the contrary in the legislative history, it would and should exercise wide discretion in interpreting and enforcing the Act. It is therefore not surprising that the Commission's assertions of deference to editorial judgment are palpably incredible.
The Commission first confounds itself by announcing that the duty to provide access attaches when the campaign begins and that this threshold issue was to be "based on [an] independent evaluation of the status of the campaign taking into account the position of the candidate and the networks as well as other factors" 74 F. C. C. 2d, at 665. This effectively withdrew the issue of timing from the area of broadcaster judgment and transformed it into a question of law to be determined by the Commission de novo. It was also a major shift in the agency's position, for its Broadcast Bureau just two years before had ruled that the assessment of when a campaign is sufficiently underway to warrant the provision of access was to be left to broadcaster discretion: "A licensee's discretion in providing coverage of elections extends not only to the type and amount of time to be made available to candidates,
4b. The Commission ruled that in responding to its obligation to provide reasonable time, a broadcaster should place particular emphasis on the candidates' needs, weigh each request in its own specific context on a particularized basis, and tailor its response to the individual candidate. This approach expressly rejects the thesis of § 315 that all candidates be treated equally. If the networks in this case had responded affirmatively to the candidate's request, § 315 would require that equal time be extended to all other Democratic candidates and would forbid any kind of individualized consideration that would result in giving them less time than had been previously given to their competitor. There is no trace of support in the language of the Act or in the legislative history for this unrealistic approach to § 312 (a) (7). Nor does the Commission offer any tenable explanation why a broadcaster's decision to provide equal time for all candidates is a violation of the obligation to provide reasonable time to each of them. The inference may be drawn from the Commission's position that reasonable access may require unequal access, but § 315 requires equal time for all once it is
Of course, the individualized-need approach requires a broadcaster to make an assessment with respect to each request for time, and each of these countless assessments will be subject to review by the Commission. If the degree of oversight to be exercised by the Commission is to be measured by its work in these cases, there will be very little deference paid to the judgment and discretion of the broadcaster. The demands of the candidate will be paramount. As Commissioner Lee said in this litigation: "I have listened carefully to my colleagues explain how this decision leaves broadcast discretion with the networks. However, the decision doesn't have this effect. By the time the majority finishes its analysis of the networks' reasons for not giving time, the networks do not have any choice other than to give the requested time. No other weighing of factors is reasonable in the view of the majority." 74 F. C. C. 2d, at 681 (footnote omitted).
4c. Indicative also of the stringent degree of oversight that the Commission now intends to exercise is the manner in which it dealt with the networks' suggestions that in responding to the request for time involved here, they were entitled to take into account the fact that a total of 122 persons had filed notices of candidacy for the Presidency with the Federal Election Commission. The Commission conceded that it was a proper concern and that Republican candidates might have to be treated equally with Democrats. The Commission, however, in its political wisdom, concluded that it was "unlikely" that more than a tiny percentage of all candidates would request time, the net effect being that the networks' anticipations based on their professional experience were rejected. As petitioner CBS submits in its brief: "Broadcasters are not permitted to consider the likelihood of multiple future requests by similarly situated candidates unless
4d. The Court tells us: "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." Ante, at 387. But this language can be taken with a grain of salt, since the Commission, the Court of Appeals, and the majority give the networks no deference whatsoever. This is so because the "appropriate factors" are designed to eviscerate broadcaster discretion. The abrupt departure from accepted norms and the truly remarkable extent to which the Commission will seek to control the programming of political candidates in the future is best demonstrated by its rejection, as being unreasonable, of the submissions filed by the networks in response to the complaints, these submissions being summarized in the networks' briefs as follows:
None of these justifications is patently unreasonable. They become so only because of the Commission's conclusion, adopted by the majority, that the reasonableness of access is to be considered from the individual candidate's perspective, including that candidate's particular "needs." While both the Court and the Commission describe other factors considered relevant such as the number of candidates and disruption in programming, the overarching focus is directed to the perceived needs of the individual candidate. This highly skewed approach is required because, as the Court sees it, the networks "seek the unilateral right to determine in advance how much time to afford all candidates." Ante, at 389. But such a right, reasonably applied, would seem to fall squarely within the traditionally recognized discretion of the broadcaster. Instead of adhering to this 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
JUSTICE STEVENS, dissenting.
In my judgment, the question whether a broadcast licensee has violated 47 U. S. C. § 312 (a) (7) by denying a political candidate reasonable access to broadcast time must be answered
In sum, I find JUSTICE WHITE'S analysis of the issue compelling. I accordingly join his opinion.
"On behalf of the Carter/Mondale Presidential Committee, Inc., I am requesting availabilities for a thirty (30) minute program on [ABC, CBS, or NBC] between 8:00 p. m. and 10:30 p. m. E. S. T. on December 4, December 5, December 6, or December 7, 1979. This program, to be run in conjunction with an announcement concerning his candidacy by President Carter for the Democratic nomination for President, consists of a documentary outlining the President's record and that of his administration. At the time this program is aired, it may be assumed that President Carter will be a legally qualified candidate under the Communications Act of 1934, as amended, and that the President would appear on the program.
"As you know, the first official contest to select delegates to the Democratic National Convention occurs January 21, 1980, in Iowa, which is 47 days after December 7, 1979, our last requested date for availabilities.
"Unlike all previous Presidential election years, the news media has chosen to focus enormous attention on the Florida Caucus (October 13, 1979) and Convention (November 16-18, 1979) as well as other aspects of the 1980 campaign. As illustration, I have noted that in the six-week period from September 1 through October 9, 1979, ABC devoted 51 minutes, 22 seconds to the 1980 campaign; CBS devoted 51 minutes, 17 seconds to this subject; and NBC devoted 70 minutes. Therefore, our request for the above time seems eminently appropriate in view of the escalating political climate already generated by both print and broadcast media.
"I will expect to hear from one of your sales representatives within the next week regarding a selection of times in order that we may choose a mutually agreeable date." App. 35-40.
"Because of the large number of present and potential candidates for the Republican and Democratic presidential nominations, we are at this time unable to accede to your request to purchase a half-hour program. We note that three Democrats and eleven Republicans have already announced, or may reasonably be expected shortly to announce, their presidential candidacies; indeed two candidates for the Republican presidential nomination have already requested to purchase half-hour programs on the CBS Television Network, and their requests have been declined on the same basis as indicated below.
"In light of the above circumstances, were we to provide the half-hour program you seek, accommodating potential requests for equal treatment from other candidates for presidential nomination would involve massive disruptions of the regular entertainment and information schedule of the CBS Television Network. Accordingly, we must respectfully reject your request.
"We are, however, prepared to make one 5-minute segment in prime time and one 5-minute daytime segment available for purchase by your committee. We note that this is the same offer made to the Republican candidates referred to above in response to their requests to purchase half-hour time periods.
"While we are unable to make available time on the dates you have specified, we are able to offer for your purchase a 5-minute period on December 8 between approximately 10:55 and 11:00 PM. We will also provide a specific 5-minute daytime availability for your purchase on request." Id., at 44-45.
"[T]he ABC Television Network has not reached a decision as to when it will start selling political time for the 1980 Presidential campaign, and, accordingly, we are not in a position to comply with your request. As I mentioned on the telephone, I believe that later this year a decision will be made to make political time for the Presidential campaign available on ABC-TV early next year." Id., at 41.
"We have evaluated your request carefully. Based upon our experience with past campaigns, we believe it is too early in the political season for nationwide broadcast time to be made available for paid political purposes. In addition, we believe that honoring your request at this early stage of the Presidential campaign would require NBC to honor similar requests from a number of other Presidential aspirants. The impact of such an undertaking at this time is, of course, a significant factor in our decision.
"Insofar as the nomination process is now focused on political activities in individual states like Iowa, you may wish to contact stations serving those particular states.
"Please be assured that NBC News will continue to cover important and newsworthy aspects of President Carter's political activities." Id., at 42-43.