Telecommunications Research and Action Center Washington Area Citizens Coalition Interested in Viewers' Constitutional Rights v. Federal Communications Commission and United States of America, Public Broadcasting Service, Intervenors

Citation: 26 F.3d 185Docket: 92-1358

Court: Court of Appeals for the D.C. Circuit; June 24, 1994; Federal Appellate Court

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Petitioners Telecommunications Research and Action Center (TRAC) and Washington Area Citizens Coalition challenge two orders from the Federal Communications Commission (FCC) that grant exemptions to the "equal time" provisions of the Communications Act of 1934. The first order denied TRAC's request to overturn a prior FCC decision (Oliver Productions, Inc., 4 F.C.C.R. 5953 (1989)), affirming that certain segments of the television show The McLaughlin Group qualify as "bona fide newscasts." The second order allowed non-licensee-produced news interview programs to be classified as "bona fide news interviews," thereby exempting them from equal time requirements.

The "equal time" provision under Section 315 mandates that broadcast licensees provide equal opportunities for all legally qualified candidates when one candidate is permitted to use the station. However, the Act exempts specific categories of broadcast material from this requirement, including bona fide newscasts, news interviews, news documentaries (when a candidate's appearance is incidental), and on-the-spot news event coverage.

The court defers to the FCC's reasonable interpretation of the Act and denies the petitions for review, upholding the Commission’s application of these exemptions.

In fall 1988, Oliver Productions, Inc. sought an FCC ruling to classify segments of The McLaughlin Group as "bona fide newscasts," thereby exempting them from the equal time provisions of the Communications Act. The FCC's Mass Media Bureau granted this petition on November 4, 1988. TRAC later petitioned for a review, arguing that candidate appearances were too brief to warrant the Bureau's ruling and contested the classification of McLaughlin's segments as newscasts due to its non-affiliation with an FCC licensee or network and deviation from traditional formats. The FCC denied TRAC's petition, asserting that some segments were too lengthy for the "fleeting use" exception and that a program could qualify as a bona fide newscast if it reported current events similarly to traditional newscasts. The FCC found McLaughlin's segments aligned with this definition, reporting significant news using previously aired network footage, and determined there was no evidence of bias in the selection of news content. TRAC's argument that only FCC licensee-produced programs could qualify for the exemption was also rejected. TRAC subsequently appealed to the court, which dismissed the petition based on TRAC's lack of standing, explaining that TRAC could not claim injury since it had previously endorsed the FCC's conclusion on the segments' exemption. The court noted that if McLaughlin's format changed, TRAC might have standing to challenge the exemption. TRAC later initiated a new FCC proceeding, alleging that recent segments featured candidates for more extended periods than previously recorded, which would not qualify for the fleeting use exemption.

TRAC contended that new facts warranted the Commission's reconsideration of its prior ruling, which exempted the McLaughlin news segments from equal time provisions as "bona fide newscasts." The Commission denied TRAC's request for a declaratory ruling on this matter. Subsequently, TRAC sought judicial review. 

In a related case, public broadcasters petitioned the FCC for a declaratory ruling asserting that "independently produced, bona fide news interview programs" should also be exempt from the equal time provision of section 315(a). Historically, the Commission maintained that only those programs produced by FCC licensees or networks qualified for this exemption. However, the broadcasters argued that the statutory language did not impose such restrictions and that Congressional intent was to exempt any widely distributed news interview program not associated with a candidate, regardless of the producer's status as an FCC licensee. 

TRAC opposed this petition, arguing that the exemptions clearly applied only to licensees and that Congressional intent favored accountability through licensed entities. The Commission ultimately granted the public broadcasters' petition, reversing its prior stance and clarifying that the exemption applies to any bona fide news interview program, without requiring production by specific entities. The Commission reinterpreted the legislative history, indicating that the previous limitations aimed to prevent candidate control over programming rather than to restrict eligibility based on the producer's status. TRAC now seeks to overturn both the McLaughlin Group Decision and the Independent Producers Decision, claiming the FCC's interpretations of section 315 are contrary to the statute's plain language or, alternatively, unreasonable.

TRAC's petition challenges the Commission's interpretation of the "bona fide newscast" and "bona fide news interview" exemptions under section 315 of the Communications Act, invoking the Chevron two-step framework for judicial review. The first step assesses whether Congress has clearly addressed the issue at hand; if not, the second step evaluates the agency's interpretation for reasonableness and consistency with statutory purpose. 

In the first order under review, the Commission upheld its prior decision that segments of the McLaughlin program qualify as "bona fide newscasts," exempting them from equal opportunity requirements. TRAC argues that the term "bona fide newscast," in its plain meaning and legislative history, does not apply to McLaughlin, as its format consists of distinct news segments rather than continuous stories typical of standard newscasts. The Commission counters that the definition of "newscast" does not necessitate a specific format, citing that Congress intentionally avoided detailing program formats when drafting the exemptions. The lack of a precise definition within the Act allows the Commission discretion in determining the characteristics necessary for the "bona fide newscast" exemption.

The Commission determined that a news segment can qualify for the "bona fide newscast" exemption if it reports on current events similarly to traditional newscasts. The news reporting segments of the McLaughlin Group were found to meet this definition as they cover national and world news using conventional reporting methods. The Commission noted that the accompanying video features often aired on established news networks, reinforcing their authenticity. 

TRAC argued that the term "bona fide" requires that news segments be selected specifically to inform viewers about current events, emphasizing genuine news value and not for political purposes. However, the Commission found no evidence that the McLaughlin segments were chosen for any reason other than their newsworthiness. Consequently, TRAC's appeal did not present sufficient grounds to challenge this finding.

Additionally, TRAC contended that McLaughlin should not qualify for an equal time exemption because Congress considered but did not create an exemption for panel discussions. However, the Commission clarified that it only exempted the news reporting segments, not the panel discussions, and found no legislative intent to exclude news segments from this exemption. As a result, TRAC's petition for review of the Commission's decision regarding McLaughlin was denied.

The FCC's Independent Producers Decision states that "independently produced, bona fide news interview programs" are exempt from the equal opportunity provisions of section 315(a) of the Communications Act. TRAC argues that this ruling conflicts with the statute's language, history, and purpose, claiming that only programs produced by FCC licensees can qualify as "bona fide" news programs. TRAC emphasizes that section 315 imposes equal opportunity obligations solely on licensees, suggesting that only their productions can be exempt from these responsibilities.

However, the FCC counters that the exemptions do not specify that only licensee-produced programs qualify. The Commission asserts that a licensee's equal time obligations apply whenever a candidate uses a broadcast station, irrespective of who produced the show. Thus, the statute focuses on the licensee's responsibilities rather than the producer's identity. 

TRAC further contends that the Commission's interpretation is unreasonable, arguing that legislative history indicates exempt programming should remain under licensee or network control. The FCC finds this argument unconvincing, noting inconsistencies in the legislative history regarding whether such control is necessary for a "bona fide newscast." The Conference Report does not address this issue, leaving ambiguity in congressional intent.

TRAC argues that the "bona fide news interview" exemption is limited to news interviews produced by Commission licensees and networks, as indicated by the Conference Report accompanying the section 315 exemptions. This report specifies that for a news interview to be considered "bona fide," the content, format, and participants must be determined by the licensee or network, based on their genuine news judgment rather than for political gain. Historically, the Commission aligned with TRAC's interpretation, maintaining that only licensees or networks qualified for the exemption. However, in a recent ruling regarding public broadcasters, the Commission reversed this position, asserting that independent producers could also qualify for the exemption. 

The Commission re-evaluated the legislative history and recognized that in 1959, when the Conference Report was drafted, licensees and networks were the predominant producers of news content, but the report's language was not intended to exclude independent producers. The Commission emphasized that the primary goal of the exemptions was to ensure comprehensive news coverage of political campaigns, which had been hindered by the previous interpretation that limited the exemption to traditional producers. This change aimed to encourage the production of news interviews with political candidates, aligning with Congress's intent to foster a fully informed public.

The Commission found no definitive evidence in the statute or its legislative history indicating that Congress intended to prevent independent production of exempt programming. To mitigate the "chilling effect" of prior rulings and promote Congress's goal of ensuring the free flow of news about political candidates, the Commission reasonably extended the "bona fide" news programming exemptions to independent producers. The Communications Act does not explicitly address whether independently produced content qualifies for these exemptions, and the legislative history lacks clarity on permissible producers for exempt newscasts. 

Contrary to TRAC's assertion, the FCC can enforce equal time regulations even with independent productions, as any show manipulated by candidates would lose its exempt status, complicating its marketability. Broadcasters airing such programs remain under FCC jurisdiction and must comply with equal time provisions. Although TRAC doubts the sufficiency of these regulatory measures, the FCC believes its ruling aligns with congressional objectives, and there is no basis to challenge this judgment.

The Commission's prior stance that only licensee- and network-produced interviews qualified for the exemption does not render its current decision arbitrary. Agencies can change their interpretations of public interest, provided they offer a reasoned analysis for such changes. The Commission's acknowledgment of a new interpretation concerning the "bona fide news interview" exemption, along with its alignment with the Act's language and purpose, meets the standards of reasoned decision-making.

In conclusion, the Commission's determination that segments of The McLaughlin Group qualify as "bona fide newscasts" exempt from equal time provisions reflects a reasonable interpretation of the Communications Act, warranting deference. The extension of exemptions to independently produced programming is upheld, and the petitions for review are denied.

Petitioners argue that the news segments of McLaughlin cannot be classified as bona fide newscasts because they are produced by an independent producer rather than an FCC licensee or network. This interpretation is rejected based on discussions from the Independent Producers Decision. TRAC acknowledges the Commission's authority to exempt segments of non-exempt programs under section 315 but asserts that only programs produced by licensees can qualify as bona fide news programs, as section 315's equal opportunity obligations apply solely to licensees. TRAC contends that allowing independent producers to permit candidate appearances would contradict the plain language of section 315a, which imposes time obligations only on licensees.

However, the Commission counters that TRAC's interpretation misreads the statutory language, which does not restrict the exemptions to programs produced by specific entities. The Commission emphasizes that equal time obligations arise when a licensee allows a candidate to use a broadcast station, irrespective of the program's producer. TRAC also claims the Commission's interpretation of the statute is unreasonable, citing legislative history that suggests exempt programming should remain under licensee or network control. The Commission finds this argument unpersuasive, noting inconsistencies in the legislative reports regarding the necessity of licensee control for bona fide newscasts, while acknowledging that TRAC's historical argument regarding bona fide news interviews is stronger but ultimately fails.

For a news interview to qualify as bona fide, the content, format, and participants must be determined by the licensee for interviews originating from a station, or by the network for those from a network. This determination must stem from bona fide news judgment, not for the political advantage of a candidate. The Congressional intent, as expressed in H.R. CONF. REP. NO. 1069, indicates that only news interviews produced by Commission licensees and networks should be eligible for a section 315 exemption, which is crucial for the enforcement of equal time regulations. Historically, the Commission interpreted this report in alignment with this view. 

However, in a recent ruling, the Commission reconsidered its position, acknowledging the evolution of the broadcast and cable industries. It concluded that news interviews produced by independent producers could qualify for the exemption. Initially, the Conference Report's language suggested that only licensees and networks should control exempt news interview programming, reflecting the media landscape of 1959. Upon re-evaluation, the Commission recognized that the Report aimed to prevent candidates from controlling their own interviews, not to exclude independent producers.

The Commission emphasized that the primary goal of the exemptions was to promote comprehensive news coverage of political campaigns, ultimately aiming to inform the public effectively. The prior restriction on independent productions was seen as counterproductive to this goal, as it hindered the production of political candidate interviews.

No conclusive evidence in the statute's language or legislative history indicates that Congress intended to prevent independent production of exempt programming. The Commission aimed to eliminate the chilling effect of its prior decisions and support Congress's objective of ensuring the free flow of news information about political candidates. The extension of bona fide news programming exemptions to independent producers was deemed reasonable and consistent with the Communications Act’s language and policies. 

The Act does not specify whether independently produced programming qualifies for equal time exemptions, and the legislative history does not clarify permissible producers of exempt newscasts. The Conference Report does suggest that control over exempt news programming was primarily intended for licensees and networks, reflecting the era's production landscape, but does not outright prohibit independent producers. 

Contrary to TRAC's claims, the FCC could enforce equal time regulations even with independent producers. Any candidate manipulation would disqualify a show from its exempt status, complicating its marketability. Broadcasters remain under FCC jurisdiction and must manage candidate appearances according to the equal time provisions. 

The Commission's previous stance, limiting exempt programming to licensees and networks, was not arbitrary; agencies can change their public interest views based on new interpretations, provided they offer a reasoned analysis for the change. The Commission provided such an analysis, aligning its decision with the statute's language and purpose. 

The order affirming that segments of The McLaughlin Group are bona fide newscasts exempt from equal time provisions was a reasonable interpretation, and the Commission's determination that these exemptions extend to independently produced programming was upheld. The petitions for review were denied.