Community-Service Broadcasting of Mid-America, Inc. v. Federal Communications Commission and United States of America , 593 F.2d 1102 ( 1978 )

MacKINNON, Circuit Judge,

dissenting:

I join in Parts I and II of Judge Leventhal’s dissenting opinion, and I agree with the result in Part III so far as it goes. However, I do not join in Judge Leventhal’s limiting construction of the scope of section 399(b), which construction in my view, improperly narrows the plain meaning of the words of that statute. Because I do not believe that Judge Leventhal’s limitation of the scope of the statute is necessary to uphold it, I would affirm the statute and the rule promulgated thereto in toto, with the caveat that the protective jurisdiction of the courts is always available if the oversight function of the statute, as applied, is used to deny constitutional rights.

As stated by Judge Leventhal, Congress, under the Public Broadcasting Act of 1967,¹ appropriates funds for the production of programs to be broadcast by noncommercial television and radio stations.² The Act also authorizes appropriations for varied types of assistance to such stations, including matching grants for construction,³ grants for telecommunicative demonstrations and projects,⁴ and funds for the various undertakings of the Corporation for Public Broadcasting, an independent, nonprofit corporation established by the Act to assist in developing a noncommercial educational broadcasting system.⁵ Educational broadcasting, supported in whole or in part by federal assistance given under the Act via the Corporation, is required to meet the standard of “strict adherence to objectivity and balance in all programs or series of programs of a controversial nature.”⁶ As Judge Leventhal observes:

That standard is more rigorous than that applicable to licensees generally under the fairness doctrine, which provides a loose standard of general balance in a licensee’s overall programming and has no requirement for individual programs.

Leventhal, J., dissenting op. at--of 192 U.S.App.D.C., at 1136 of 593 F.2d. The justification for this different treatment is perfectly, obvious and adequate — one licensee operates in part on government funds and the other does not. If this is not adequate justification, then a great many requirements imposed by statutes on recipients of appropriated funds or participants in Government programs will necessarily be negated.⁷ I would hold that it is adequate justification. Congress, with special cognizance of the important role to be performed by the public in assisting it in the discharge of its function, reserved for itself the oversight responsibility of assuming that programs produced with federal funds or broadcast by stations relying upon federal assistance for their operation conform to the strict objectivity and balance standard.⁸ The right to impose the standard has never been questioned. In my view this is a legitimate and substantial government interest.⁹ Thus, I agree with the result reached by Judge Leventhal with respect to federally funded programs. However, I would also reach this same result and apply the plain language of that statute to all programs broadcast by any licensee “which receive[d] assistance under sections 390 to 399 [of the Public Broadcasting Act] ... in which any issue of public importance is discussed.” 47 U.S.C. § 399(b)(1).

The history of section 399(b), which Judge Leventhal has incisively probed,¹⁰ demonstrates that the purpose of the provision is to facilitate monitoring by the public and by Congress of compliance, by licensees who broadcast programs discussing issues of public importance with the assistance of federal funds, with the strict objectivity and balance requirement of section 396(g)(1)(A).¹¹ That purpose is entirely consistent with Congress’ interest in ensuring that federal funds are expended consistently with statutory mandates (Leventhal, J., dissenting op. at - of 192 U.S.App. D.C., at 1146 of 593 F.2d). And it is clear that Congress contemplated the assistance of citizens in the discharge of the oversight function. As stated in the House Committee Report,

The educational stations must not be permitted to become vehicles for the promotion of one or another political cause, party, or candidate. It is assumed that the normal checks and balances within our political system will insure that this principle will be constantly safeguarded by interested citizens.

H.R.Rep. No. 572, 90th Cong., 1st Sess. (1967), reprinted in [1967] U.S.Code Cong. & Admin.News, pp. 1799, 1810 (emphasis added).

The Act’s legislative history demonstrates that Congress did not intend to involve the federal government in the programming decisions of local stations.¹² It did not seek to authorize any prior restraint. Yet Congress was genuinely concerned that additional public affairs broadcasting was needed and that the use of public funds to that end carried with it the obligation to insure “strict adherence to objectivity and balance in all programs” (47 U.S.C. § 396(g)(1)(A)). Thus, by authorizing the “full amount” for recording requirement, Congress sought to help insure objectivity and to enlist the public’s involvement in furtherance of that objective.

The statute provides for access to such programming through the recording requirement by “any . . . person” (47 U.S.C. § 399(b)(3)(B)). To encourage compliance and public involvement therein, Congress established a limited archive of public affairs programs which would be available to everyone on an equal basis.¹³ This would provide the public with access to programs which they had reason to believe, either correctly or incorrectly, did not satisfy the statutory requirement of “strict adherence to objectivity and balance.” ¹⁴ In pursuit of that end, an authoritative record of what was said is an absolute necessity to fair adjudication of complaints. It is hard to understand that people would object thereto. If it deters the broadcast of irresponsible, inaccurate, and slanted utterances in contravention of the objectivity and balance requirement of section 396(g)(1)(A) with the assistance of public funds, so much the better. That is a valid public purpose which is applicable to all “noncommercial educational broadcasting station[s]” (47 U.S.C. § 399(a)), and it matters not that the federal assistance is furnished to the construction of the station or to its programs.

Chief Judge Wright has concluded that a substantial government interest does not exist in recording programs of public importance that are produced with federal funds and Judge Leventhal reaches the same conclusion except where the programs are funded by the Government. It is recognized that these noncommercial stations broadcasting educational programs receive funds from both private and governmental sources, and that some programs are produced with private funds. Also, it is true that some government funds are used for purposes other than the production of programs, such as construction or acquisition of equipment, etc. When federal funds are used to construct or operate a facility, in whole or in part, and that facility holds itself out to the public as acting in the public interest and not for commercial purposes (that is, functioning for impartial public motives), that use enables funds from private sources to be released and directed toward program production. The public’s interest in preventing the expenditure of government funds to thus assist indirectly in the production of programs that are not objective and balanced is just as great as the public’s interest in preventing the direct expenditure of government funds to transmit a slanted and unbalanced program in whole or in part. Hence, I do not agree that section 399(b) should be given a narrow construction that does violence to its plain language. The policy decision was properly made by Congress, the decision to so condition the receipt of public funds is validly within the power of Congress over appropriations, and therefore there is no basis for us to depart from the plain words of the Act. Where station personnel are used in public affairs broadcasts and federally assisted programs, it would be a difficult if not impossible task to determine the extent of the assistance derived from federal funds, and the statute does not require that the Commission undertake the task of tracing such moneys.

Even though I would uphold the statute as written, I would also recognize that the power conferred by this statute, like that in many others, is capable in its application of being improperly applied by those charged with its administration. For instance, if the oversight function were used to impose an impermissible prior restraint, the courts would be open to prevent it, as in all similar cases. Other types of abuse could well demand a finding that the particular application of the statute was invalid. Such conduct would also violate the clear prohibition of the statute:

Nothing contained in sections 390 — 399 . shall be deemed ... (2) to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over educational television broadcasting, or over the Corporation or any of its grantees or contractors, or over the charter or bylaws of the Corporation, or personnel of any educational institution, school system, or educational broadcasting station or system.

47 U.S.C. § 398. Thus any federal “agency, officer, or employee” who attempted “to exercise any direction, supervision, or control over educational . . . broadcasting, or over . . . any grantees” would be in clear violation of the statute.

Awaiting the actual operation of the statute as recommended by Judge Leventhal, dissenting op. at-of 192 U.S.App.D.C., at 1150 of 593 F.2d, and followed in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392-94, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), has particular cogency in this case where the injury that petitioners claim they have suffered is largely abstract and speculative. My statement in Tatum v. Laird, 144 U.S. App.D.C. 72, 444 F.2d 947 (D.C. Cir. 1971), rev’d, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), has relevance to the damage here claimed:

There is nothing more here than a highly abstract claim based on an imaginary fear that governmental power to collect information for a valid purpose will be misused for an improper purpose. Similar fears might exist with respect to any government power. All power is susceptible of misuse, but that truism when coupled with unfounded fear alone is not sufficient to make out a case for judicial jurisdiction.

144 U.S.App.D.C. at 86, 444 F.2d at 961 (MacKinnon, J., dissenting), rev’d, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). As stated by the Supreme Court in Tatum v. Laird, supra,

Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; “the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

408 U.S. at 13-14, 92 S.Ct. at 2325-26.

The mere potential impairment of a constitutional right under a statute does not by itself create a justiciable controversy. Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 71, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); International Longshoremen’s Union v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 98 L.Ed. 650 (1954). In the event it ever happens that more specific allegations of interference with First Amendment rights are articulated, “there will be time enough to reconsider the constitutional implications.” Red Lion Broadcasting v. FCC, supra, 395 U.S. at 393, 89 S.Ct. at 1808.

For the foregoing reasons, I conclude that the statute is valid in its entirety, should be given its plain reading, and I would not issue an advisory opinion based essentially on a prophecy that beneficiaries of government largess necessarily need fear pressures that would violate the statute and the Constitution. See Red Lion Broadcasting v. FCC, supra, 395 U.S. at 392-95, 89 S.Ct. 1794; Preiser v. Newkirk, 422 U.S. 395, 401-02, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 218-23, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); Younger v. Harris, 401 U.S. 37, 41-42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Boyle v. Landry, 401 U.S. 77, 80-81, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969); Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). In so doing the majority clearly exceed any jurisdiction conferred on the federal courts. I respectfully dissent, and Judge Robb joins herein.

1 . Act of Nov. 7, 1967, Pub.L. No. 90-129, 81 Stat. 368, as amended, 47 U.S.C. §§ 390-99.

2 . 47 U.S.C. §§ 396(g), (k).

3 . 47 U.S.C. §§ 391, 392.

4 . 47 U.S.C. § 392?, Pub.L. No. 94-309, 90 Stat. 685 (1976).

5 . These activities include establishing and developing one or more systems of interconnection to be used for the distribution of educational television or radio programs; establishing and developing one or more systems of noncommercial television or radio broadcast stations; aiding in the financing of the costs of television or radio programming and operation of the stations; establishing and maintaining a library and archives of programs and related materials; and publicizing noncommercial broadcasting. 47 U.S.C. § 396(g).

6 . 47 U.S.C. § 396(g)(1)(A).

7 . See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958) (“[B]eyond challenge is the power of the Federal Government to impose reasonable conditions on the use of federal funds, federal property, and federal privileges”); King v. Smith, 392 U.S. 309, 333 n.34, 88 S.Ct. 2128, 2141, 20 L.Ed.2d 1118 (1968) (“There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed .”); see also Silva v. Romney, 473 F.2d 287, 290 (1st Cir. 1973).

8 . Compare Leventhal, J., dissenting op. at--- of 192 U.S.App.D.C., at 1136 of 593 F.2d, which concludes that Congress reserved for itself the oversight responsibility for federally funded programs only, and that this is a legitimate and substantial government interest.

9 . Stations that receive public funds under the Act are not similarly situated with stations that do not receive such funds. The statute’s purpose is to make broadcast stations that receive support from public funds more responsive to members of the public by making their public affairs programming more accessible through the recording requirement and the concomitant establishment of a limited temporary archive. And Congress in § 399(b)(5) authorized grants “to any licensee of a noncommercial educational broadcast station who received assistance under this part [§§ 390-99] of the full amount necessary to acquire equipment to permit such licensee to comply with paragraph (1) of this subsection [sixty day retention of audio recordings].” (Emphasis added.) Because the regulated media generally receive substantial benefits from government regulation of the airwaves, it follows that broadcast stations which do not receive public funds are also, in some respects, the public’s business. Yet it is not unreasonable for Congress to conclude that the public has a greater interest in stations that utilize public funds for part or all of their operation and are held out to the public as pure “noncommercial educational broadcast stations.” Thus, I agree with Judge Leventhal that limiting the reach of section 399(b) to publicly funded stations is both legitimate and substantially related to a valid governmental interest.

10 . Leventhal, J., dissenting op. at---of 192 U.S.App.D.C., at 1141-1146 of 593 F.2d.

11 . Chief Judge Wright has concluded that section 399(b) was intended “to impose the threat of congressional or governmental control over the content of noncommercial public affairs broadcasting.” Wright, C. J., op. at-of 192 U.S.App.D.C., at 1114 of 593 F.2d. Judge Leventhal has analyzed the legislative history, and I agree with his interpretation of it. Leventhal, J., dissenting op. at---of 192 U.S.App. D.C., at 1141 — 1146 of 593 F.2d. Judge Leventhal’s position, in my view, is bolstered by the Court’s holding in United States v. O’Brien, 391 U.S. 367, 383-89, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968):

When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought sufficient to risk the possibility of misreading Congress’ purpose. It is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.

It is thus impermissible for the courts in a situation such as we have here to impose a prior restraint on the application of the statute. What is needed is a concrete case involving the application of the statute.

12 . Leventhal, J., dissenting op. at---of 192 U.S.App.D.C., at 1137-1139 of 593 F.2d; H.R.Rep. 572, 90th Cong., 1st Sess., at 15, 17— 18 (1967), reprinted in [1967] U.S.Code Cong. & Admin.News, pp. 1799, at 1805, 1807-08; S.Rep. No. 222, 90th Cong., 1st Sess. at 4, 7 (1967), reprinted in [1967] U.S.Code Cong. & Admin.News, pp. 1772, at 1775, 1778; 47 U.S.C. §§ 396(g)(1)(D), 398.

13 . Section 399(b) merely preserves material already available in full to the public for the simple effort of listening and/or watching a station or channel for a limited period. The statute merely preserves, as would a newspaper archive, the material published by the broadcast stations. Unlike the newspaper archive, the material is preserved only for a limited period of time.

14 . Maintaining a limited archive would also benefit stations by providing a convenient conclusive response to critics who charged that some subject had been treated unfairly or inaccurately by the station.