Becker v. Federal Communications Commission

Citations: 95 F.3d 75; 320 U.S. App. D.C. 387; 4 Communications Reg. (P&F) 882; 1996 U.S. App. LEXIS 24105; 1996 WL 517136Docket: Nos. 95-1048, 95-1056

Court: Court of Appeals for the D.C. Circuit; September 13, 1996; Federal Appellate Court

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Consolidated cases involve a federal candidate, Daniel Becker, and the Washington Area Citizens Coalition Interested in Viewers’ Constitutional Rights (WACCI), challenging a Federal Communications Commission (FCC) order that allows broadcasters to restrict airing political advertisements deemed potentially harmful to children. Petitioners argue this ruling infringes on their rights under sections 312(a)(7) and 315(a) of the Communications Act of 1934, which ensure candidates have reasonable access to broadcast media and equal opportunities without censorship. 

The background highlights that during the 1992 election, Becker, a candidate for the U.S. House from Georgia, aired an advertisement featuring images of aborted fetuses, leading to viewer complaints. In response, Gillett Communications, the station’s licensee, sought a ruling on whether it could restrict such content to times when children are less likely to watch. Concurrently, a law firm representing various broadcasters requested permission for licensees to decline airing graphic political advertisements if deemed indecent. 

The FCC’s Mass Media Bureau reviewed Becker’s advertisement and determined it was not indecent, stating that restricting access to non-indecent material would violate federal candidates' rights to campaign effectively. The Bureau found that the proposed restrictions were inconsistent with the Communications Act's provisions regarding candidate access.

Kaye Scholer filed an Application for Review after Mr. Becker's attempt to purchase air time on WAGA-TV for a political program titled 'Abortion in America: The Real Story' was denied. WAGA-TV refused to air the program during the requested time, citing the indecency provision of 18 U.S.C. 1464, offering to broadcast it only during safe harbor hours of midnight to 6:00 a.m. Mr. Becker lodged a complaint with the FCC on October 27, 1992. In response to Becker’s complaint and Kaye Scholer’s application, the FCC solicited comments on the obligations of broadcast licensees regarding political advertisements they believe to be indecent. The Bureau's response indicated that, pending definitive guidance from the Commission, a licensee might reasonably conclude that Section 312(a)(7) does not obligate them to air such content outside safe harbor hours. Becker subsequently filed an Application for Review, and on November 22, 1994, the FCC issued a Memorandum Opinion and Order denying Becker's Application while partially granting Kaye Scholer’s. The FCC concluded that Becker's advertisement was not indecent, acknowledged potential psychological harm to children from graphic political ads, affirmed that broadcasters can exercise discretion in placing political advertisements to protect children, and determined that such channeling would not violate the no-censorship provision of Section 315(a). WACCI and Becker petitioned the court to review the FCC order, with WAGA intervening on the FCC’s behalf. The Commission argued that the petitions should be treated as facial challenges to legislative acts, requiring petitioners to show that no circumstances could allow channeling. However, the court noted that petitioners were contesting the FCC’s interpretation of the sections rather than their validity, and thus the review standard was derived from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which mandates deference to an agency's interpretation unless Congress has explicitly addressed the issue.

'Permissible' is defined as 'rational and consistent with the statute' according to the Supreme Court in NLRB v. United Food, Commercial Workers Union. The task is to evaluate if the Commission's interpretation of sections 312(a)(7) and 315(a) aligns with this definition, particularly since Congress did not explicitly address channeling. Section 312(a)(7), added by the Federal Election Campaign Act of 1971, allows for the revocation of a station's license if it willfully or repeatedly fails to provide reasonable access for legally qualified federal candidates to purchase broadcasting time. Although 'reasonable access' is not explicitly defined in the statute, FCC guidelines indicate that licensees must afford candidates opportunities to purchase reasonable time. A rigid refusal to sell prime-time programming to candidates is deemed unreasonable and inconsistent with Congressional intent, which aims to enhance candidates' media access to inform voters. The Supreme Court has endorsed the Commission's interpretation as a balanced approach that respects both candidates’ rights and broadcasters' discretion. Furthermore, the Commission has issued recent guidelines stipulating that broadcasters must provide prime time access to candidates unless there are unusual circumstances justifying a denial.

Prime time is defined by the FCC as the period with the largest audience, specifically 7-11 p.m. in the Eastern and Pacific time zones, and 6-10 p.m. in the Central and Mountain time zones. Broadcasters may decline to air political programs during prime time if the number of candidates makes it impractical to provide sufficient airtime. However, the FCC prohibits broadcasters from using denial of reasonable access to censor political content or to impose blanket restrictions on federal candidates’ access to airtime. Petitioners argue that the FCC's Declaratory Ruling diverges from its established policies by allowing broadcasters to consider the content of political advertisements when determining reasonable access, thus potentially denying candidates access to adult audiences simply because children might also be watching. Mr. Becker criticizes the ruling for granting broadcasters discretion to decide what content may harm children without clear standards. The FCC defends its ruling as consistent with its past practices and section 312(a)(7), which aims to ensure candidates have access to high-audience time slots. However, it has been argued that allowing broadcasters to limit political ads based on perceived harm to children undermines the intent of section 312(a)(7) to guarantee candidates access to prime time. The FCC's assertion that broadcasters can channel ads while still providing reasonable access is seen as contradictory, as any attempt to limit exposure to children conflicts with ensuring broad audience potential for candidates. A 1993 FCC study indicated a significant risk of children being exposed to broadcasts at any time between 6:00 a.m. and midnight.

A licensee faces a dilemma between protecting children from potentially harmful political advertisements and a candidate's right to broadcast during peak viewing times. The Federal Communications Commission (FCC) acknowledges this conflict, allowing licensees to prioritize children's welfare over unindecent political content. Congress did not intend to eliminate the discretion of licensees regarding the impact of graphic political advertisements on children. While accommodations for broadcasting during less child-viewed times are conceivable, such measures could hinder a candidate's outreach to specific adult demographics, as campaign strategy relies on targeted advertising. The FCC has recognized that licensees may refuse candidates access to certain broadcast periods under specific, undefined circumstances, primarily to prevent disruptions to programming rather than based on advertisement content. The FCC emphasizes that the determination of “reasonable access” must remain grounded in good faith judgments to avoid undermining statutory obligations under section 312(a)(7), warning against granting licensees unchecked power in this regard.

The FCC's current policy allows broadcasters to exercise discretion in channeling political advertisements based on subjective judgments about potential harm to children, despite prohibitions against channeling based on disagreement with a candidate's political position. The ruling mandates that this discretion must be "reasonable" and made in good faith, but these vague standards complicate the assessment of whether a broadcaster's decision is based on the advertisement's content or its imagery. The inability to distinguish between a message's impact and its visual representation is particularly problematic for politically charged topics like abortion, death penalty, and gun control, where graphic imagery is often integral to the message. The FCC justifies its approach by citing congressional concerns for protecting children from harmful televised content, referencing acts that focus on the quantity of advertising during children's programming and restrictions on indecent content. However, the argument is weakened by the lack of evidence that Congress intended these provisions to infringe on candidates' rights to reasonable access to broadcasting, which should take precedence over licensees' discretion. Section 315(a) of the Communications Act enshrines candidates' rights to equal opportunities and prohibits censorship by broadcasters, emphasizing that any candidate allowed to use a station must be afforded equal access without censorship.

The FCC's interpretation of section 315(a) emphasizes that licensees cannot censor political broadcast content, regardless of whether it is a 'first' use or a response to such a use. In a Declaratory Ruling, the FCC clarified that while licensees cannot delete political statements, they can schedule ads with graphic abortion imagery during times when children are less likely to be in the audience, without violating the no censorship principle. The FCC maintains that broadcasters must still air these ads in full and cannot manipulate airing times to effectively censor candidates. The ruling does not allow for selective content omission or scheduling during low viewership times. Petitioners argue that this ruling undermines section 315(a) by permitting licensees to selectively refuse to broadcast certain ads based on content and timing, thus infringing on candidates' abilities to convey their messages effectively. The FCC has not clearly defined 'censorship' under section 315(a) but acknowledges certain acts as censorship. The Supreme Court has linked censorship to the prevention of publication of objectionable material, reinforcing the intent of section 315(a) to promote unrestricted political discussion and express Congress's opposition to censorship by either the FCC or licensees. The Court's decision in WDAY, Inc. established that section 315(a) prohibits broadcasters from removing defamatory statements from candidate advertisements, supporting the principle of full and unrestricted political discourse.

The Court's discussion highlights the potential for censorship in political advertising, emphasizing the power dynamics that arise in election contexts. The threat of channeling allows licensees to exert undue influence over candidates, compelling them to avoid controversial topics to ensure their messages are broadcast. This self-censorship undermines the “full and unrestricted discussion of political issues” that Congress intended to promote. The Supreme Court’s ruling in WDAY, Inc. is cited to illustrate that censorship includes not just outright refusals to run ads but also subtle pressures that compel candidates to alter their messages. The FCC has recognized that intimidating tactics from broadcasters, such as initial refusals followed by conditional acceptance, constitute censorship under the law. Furthermore, the FCC has ruled that requiring candidates to indemnify broadcasters against potential defamation claims is impermissible as it could deter candidates from using broadcast facilities to communicate with the public. The overarching principle is that any coercive actions by licensees that force candidates to modify their political announcements will be deemed censorship in violation of Section 315(a) of the Communications Act.

The FCC emphasized Congress's intent to ensure political candidates' complete freedom of expression, stating that Section 315's no-censorship provision prohibits any form of interference with this expression. A licensee's control over political advertisements could hinder a candidate's ability to convey their message and reach their desired audience. Section 315(a) mandates that all program material from a candidate using a broadcast facility must be free from prior approval by the licensee regarding format or content. This section also requires broadcasters to provide equal opportunities for competing candidates, meaning they must offer roughly equal audience potential. The FCC noted that the Declaratory Ruling at issue does not address the equal opportunity provision since no such request was presented. However, channeling advertisements could lead to discriminatory practices, violating section 315(a) by denying candidates equal opportunities. The ruling also fails to comply with the reasonable access requirement of section 312(a)(7), as it allows content-based channeling of political ads, restricting candidates' abilities to inform voters. Ultimately, the FCC concluded that the Declaratory Ruling undermines both the no-censorship and equal opportunities provisions, necessitating the granting of petitions for review and vacating the ruling.