Arkansas AFL-CIO v. Federal Communications Commission

BEAM, Circuit Judge, with whom FLOYD R. GIBSON, Senior Circuit Judge, BOWMAN, MAGILL and LOKEN, Circuit Judges, join.

This appeal arises from the. Federal Communications Commission’s (“FCC”) refusal to apply the fairness doctrine to KARK-TV (“KARK”¹). The FCC ruled that the fairness doctrine was not statutorily mandated, and was no longer in the public intérest. Based on this determination, the FCC dismissed a fairness doctrine complaint filed by the Arkansas AFL-CIO and The Committee Against Amendment 2 (collectively “Committee”). A panel of this court affirmed. Arkansas AFL-CIO v. FCC, 980 F.2d 1190 (8th Cir.1992) (Gibson, J., dissenting). We granted the Committee’s suggestion for rehearing en banc and vacated the panel opinion. Arkansas AFL-CIO v. FCC, 980 F.2d 1197 (8th Cir.1993). We now affirm the decision of the FCC.

I. HISTORICAL BACKGROUND

The history of the fairness doctrine is not in dispute in this case and was thoroughly discussed in the panel opinion. Therefore, we briefly summarize the relevant background here.

The Radio Act of 1927, and its successor, the 1934 Communications Act, created a system under which the FCC grants licensees exclusive control of publicly owned frequencies. As a condition of their licenses, these licensees are required to operate their stations in the “public interest.” See 47 U.S.C. §§ 303, 307, 309, 315 (1991). The FCC is charged with the enforcement of the statute, including the requirement that licensees operate in the public interest.

The drafters of the 1927 Radio Act considered giving common carrier status to broadcast licensees, thereby requiring them to provide access to all on equal terms. This proposal was ultimately withdrawn, and there is no dispute that broadcasters are not common carriers. See Columbia Broadcasting Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 105, 93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973). In 1929, in Great Lakes Broadcasting Co., the Radio Commission articulated its interpretation of “operation in the public interest” as requiring that a licensee provide:

ample play for the free and fair competition of opposing views and the Commission believes that the principle applies ... to all discussions of issues of importance to the public.

Great Lakes Broadcasting Co., 3 F.R.C.Ann. Rep. 32, 33 (1929), rev’d on other grounds, 37 F.2d 993 (D.C.Cir.), cert. denied, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930). Over time, this interpretation developed into the fairness doctrine, and became an integral part of the FCC’s interpretation of its mandate. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949) (germinal statement of the fairness doctrine). The fairness doctrine consisted of a two-pronged obligation: the broadcaster must give adequate coverage to public issues, and that coverage must accurately reflect opposing views on the issues. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 377, 89 S.Ct. 1794, 1799, 23 L.Ed.2d 371 (1969) (upholding the constitutionality of the fairness doctrine).

In 1959, Congress amended section 315 of the Communications Act in response to an FCC decision, Lar Daly, 26 F.C.C. 715 (1959). In Lar Daly, the FCC ruled that any appearance on the airwaves by a candidate for political office triggered the equal time provision of section 315.² Fearing that such a rule would render ordinary news coverage impossible, Congress amended section 315 to exempt certain routine news events from the equal time provision. As part of that amendment, Congress also added the proviso:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

47 U.S.C. § 315(a). Interpretation of this proviso is at the heart of the controversy now before the court.

From 1959 until 1981, the FCC consistently interpreted the 1959 amendment to section 315 as codifying the fairness doctrine and, therefore, treated the fairness doctrine as a part of the Communications Act. See, e.g., Letter to Oren Harris, 40 F.C.C. 582, 583 (1963); Obligations of Broadcast Licensees under the Fairness Doctrine, 23 F.C.C.2d 27, 28 (1970); 1974 Fairness Report, 48 F.C.C.2d 1, 2-9 (1974). In 1981, in response to perceived changes in the broadcasting industry, the FCC recommended that Congress amend section 315(a) to repeal the fairness doctrine. FCC News Release Report No. 5068 (September 17, 1981). Congress, however, did not take the requested action. In 1985, the FCC issued a Fairness Report which cast doubt on the continued constitutional validity of the fairness doctrine. That report also suggested that the longstanding assumption that the 1959 amendment codified the fairness doctrine was erroneous.

In 1986, the D.C. Circuit ruled that the 1959 amendment to section 315(a) had, in fact, not codified the fairness doctrine. Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, rehearing en banc denied, 806 F.2d 1115 (D.C.Cir.1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987) (“TRAC”). The FCC subsequently purported to abolish the fairness doctrine on the grounds that it no longer served the public interest and that it violated the First Amendment. Syracuse Peace Council v. WTVH, 2 F.C.C.Rcd. 5043 (1987). Deferring to the FCC’s determination that the fairness doctrine no longer served the public interest, the D.C. Circuit affirmed. Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). In doing so, the D.C. Circuit found that the actions of the FCC were not arbitrary or capricious, and did not constitute an abuse of agency discretion. Id. at 669.

II. PROCEDURAL HISTORY

The proceedings before the FCC in this case, In re complaint of The Arkansas AFL-CIO and The Committee Against Amendment 2 against Television Station KARK-TV, Little Rock, Arkansas, FCC No. 91-434 (released January 6, 1992), arose from a dispute about coverage of a ballot issue voted upon by the people of Arkansas in November, 1990. The Committee filed a complaint with the FCC alleging that KARK-TV was violating the fairness doctrine in its coverage of the Amendment 2 ballot issue.

In a 3-2 ruling, the FCC dismissed the Committee’s complaint. Relying on TRAC, the FCC reiterated its conclusion that section 315 of the Communications Act of 1934 did not codify the fairness doctrine. The FCC further stated that the fairness doctrine had been repealed in Syracuse Peace Council. After conducting an independent analysis of the statutory construction issue, a panel of this court affirmed the decision of the FCC, albeit on different grounds. The Committee moved for rehearing en bane under Fed.R.App.P. 35(a). The FCC also requested rehearing en b.anc.

The posture of the case now before us en banc is somewhat confusing. To the panel, the FCC defended its decision to dismiss the Committee’s complaint on the grounds that the 1959 amendment unambiguously did not codify the fairness doctrine and that the FCC had abolished the doctrine in Syracuse Peace Council. The panel concluded that the language of the 1959 amendment was facially 'ambiguous, but that the legislative history made it clear that Congress had not intended to codify the fairness doctrine. Therefore, the panel found that the FCC properly eon-eluded that the 1959 amendment had not codified the fairness doctrine. To the en banc court, the FCC abandoned its argument that the 1959 amendment clearly and unambiguously did not codify the fairness doctrine. The FCC now argues that the United States Supreme Court holding in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) mandates a remand of the case to permit the FCC to reconsider its decision in light of the panel’s statutory interpretation. Since the Committee also contends that remand 'is required under Chevron, the FCC moved for á realignment of the parties. We granted that motion;

III. DISCUSSION

The Committee raises two issues for en banc review. First it contends that the 1959 amendment clearly and unambiguously codified the fairness doctrine. In the alternative, the Committee argues that Chevron dictates that this case be remanded to the agency. The FCC joins the Committee in this second argument and urges us to remand the case for reconsideration in light of the panel’s statutory interpretation. KARK argues for affirmance and also suggests that the case should be dismissed as moot.

The FCC decided two different issues in the case before it: (a) whether the fairness doctrine was codified, and (b) if not, whether the elimination of the fairness doctrine was an appropriate exercise of the FCC’s discretion to implement the public interest requirement of the statute. The parties have commingled these issües, but we will discuss them separately.

A. Mootness

The judicial power of the federal courts is restricted by Article III of the Constitution to cases and controversies. This court has defined a “case or controversy” to require: “a definite and concrete controversy involving adverse legal interests at every stage in the litigation.” McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.1992). The controversy must be one for which the court can grant specific and conclusive relief. Id. Occasionally, due to the passage of time or a change in circumstance, the issues presented in a case will no longer be “live” or the parties will no longer have a legally cognizable interest in the outcome of the litigation. When such changes prevent a federal court from granting effective relief, the case becomes moot. See Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam); Carson v. Pierce, 719 F.2d 931, 933 (8th Cir.1983). Mootness therefore acts as a jurisdictional bar, and must be considered before reaching the merits of the case.

KARK argues that this case is moot because the ballot issue which gave rise to this litigation has long been decided. It contends that even if the Committee should prevail on the merits, this court could not grant them any relief. We disagree. While mootness is a close question in this case, the Committee has shown that this controversy falls within an exception to the mootness doctrine because it is “capable of repetition yet evading review.” See Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 347, 46 L.Ed.2d 350 (1975) (per curiam) (citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911)).

Under that exception, federal courts are permitted to hear an otherwise moot case when: (1) the challenged action is of too short a duration to be litigated fully prior to its cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. McFarlin, 980 F.2d at 1211. This exception does not apply merely because the issue might recur in another ease with different parties. Id. The parties must demonstrate a reasonable expectation that the event complained of will recur with respect to themselves. Id.; see also Gay & Lesbian Students Ass’n v. Gohn, 850 F.2d 361, 365 (8th Cir.1988). They need not prove with certainty that the situation will recur, but a mere physical or theoretical possibility is insufficient to overcome the jurisdictional hurdle of mootness. Murphy v. Hunt, 455 U.S. at 482, 102 S.Ct. at 1183.

The Committee unquestionably satisfies the first prong of the test for a controversy that is “capable of repetition yet evading review.” Ballot issues are notorious examples of this situation. See, e.g., Norman v. Reed, — U.S. - - -, 112 S.Ct. 698, 704-05, 116 L.Ed.2d 711 (1992); Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969); see also, Branch v. FCC, 824 F.2d 37, 41 n. 2 (D.C.Cir.1987) (controversies arising in election campaigns are unquestionably among those saved from mootness under the “capable of repetition yet evading review” exception), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988); Libertarian Party v. Bond, 764 F.2d 538, 539 n. 1 (8th Cir.1985) (controversy not moot despite the fact that election had already taken place where the controversy is capable of repetition yet evading review). While the issue in this case, codification of the fairness doctrine, is tangential to the ballot issue, the same reasoning applies. If the Committee is forced to wait until the next ballot issue to contest the FCC’s decision, it -will face time constraints similar to those that prevented the resolution of this case before the 1990 election. See King Broadcasting Co. v. FCC, 860 F.2d 465, 471 n. 8 (D.C.Cir.1988). Thus, the issue of the continued viability of the fairness doctrine with regard to ballot issues would never be resolved if we found this case to be moot.³

The second prong of the “capable of repetition yet evading review” exception, a reasonable expectation that the same party will be subject to a future action, presents a closer question. However, we think that the Committee has alleged sufficient facts to prevent a finding of mootness. The Committee contends that this controversy will recur with regard to the station’s coverage of the continuing public debate on the issue underlying Amendment 2 as well as with regard to other ballot issues.⁴ The letters appended to the Committee’s Reply Brief demonstrate that while this case was pending, the parties were involved in another dispute over fairness requirements in the context of a different ballot issue. See Committee’s Reply Brief, Appendix A. We think the fact that the situation has already recurred once, coupled with the Committee’s assertion that they expect further recurrences, satisfies the second prong of the test. See Norman v. Reed, — U.S. at -, 112 S.Ct. at 705. Therefore, we find that this case is not moot.

KARK raises a number of other arguments in support of its contention that this court lacks jurisdiction to decide this case. We find these arguments meritless.⁵

B. Codification

In its decision dismissing the Committee’s complaint, the FCC relied on TRAC for the proposition that section 315 “is clear not codified.” Arkansas AFL-CIO v. KARK-TV, FCC No. 91-434, pp. 8-4. The Committee challenged that determination. The panel agreed with the Committee that the TRAC decision did not fully consider the issue, and conducted its own review of the 1959 amendment to section 315 and of the accompanying legislative history. Based on that analysis, the panel affirmed the FCC’s decision that the fairness doctrine was not codified by the 1959 amendment. To the en banc court, the Committee contends that the plain language of the statute, coupled with the unambiguous legislative history, indicates congressional intent to codify the fairness doctrine. We disagree. Having examined the reasoning employed by the panel, as well as the reasoning of the TRAC court, we are convinced that the language of the 1959 amendment to section 315(a) is ambiguous but that the legislative history makes it clear that the amendment does not codify the fairness doctrine.⁶

As noted, section 315(a) was amended in 1959 to exempt certain appearances on news programs from the general requirement that equal time be accorded to all political candidates. The 1959 amendment also contained the following proviso:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

47 U.S.C. § 315(a). To find the intent of Congress, the Committee focuses on the language in this proviso which indicates that licensees have an: “obligation imposed upon them under this chapter to ... afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” This language is offered as evidence that Congress incorporated the fairness doctrine into the statute, thus converting an administrative policy into a statutory mandate. For many years, the FCC adhered to this interpretation. While we do not deny that the Committee’s interpretation is reasonable; we are not persuaded that it is correct.

We think that Congress included this proviso as a savings clause to insure that the 1959 amendment did not unintentionally dismantle the FCC’s fairness doctrine.⁷ See TRAC, 806 F.2d at 1119 (Bork, J. concurring). The introductory phrase of this proviso states: “[n]othing in the foregoing sentence shall be construed as relieving broadcasters ... from the obligation imposed upon them under this chapter....” This wording indicates to us that the proviso was intended to maintain the status quo, rather than to impose any new statutory obligations. The language merely ensures that any obligation existing before the amendment would continue unchanged.

Since we find at least two reasonable interpretations of the statutory language, the most we can say on behalf of the Committee’s codification argument is that the statute is facially ambiguous. After an examination of the relevant legislative history, however, we are forced to conclude that the Committee’s contention that the 1959 amendment codified the fairness doctrine is in error.

The Senate and the House adopted very different language in their respective bills amending section 315(a). The House version amended section 315(a) by adding the following sentence:

Appearance by a legally qualified candidate on any bona fide newscast (including news interviews) or on any on-the-spot coverage of news events (including but not limited to political conventions and activities incidental thereto), where the appearance of the candidate on such newscast, interview, or in connection with such coverage is incidental to the presentation of news, shall not be deemed to be use of broadcasting station [sic] within the meaning of this subsection.

Conference Report No. 1069, 86th Cong. 1st Sess., reprinted in 1959 U.S.C.C.A.N. 2564, 2582. The House substitute did not mention fairness, and contained no language that could be viewed as an attempt to codify the fairness doctrine. Instead, the House substitute merely exempted certain news reports from the purview of section 315, leaving the rest of the statute unchanged.

The Proxmire amendment to the Senate version of the bill differed dramatically from this House language. The Senate version would have added the following to section 315(a):

Appearance by a legally qualified candidate on any newscast, news interview, news documentary, on-the-spot coverage of news events, shall not be deemed to be use of a broadcasting station within the meaning of this subsection, but nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this Act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, all sides of public controversies shall be given as fair an opportunity to be heard as is practically possible. .

Id. (emphasis added). The Senate version explicitly asserted that the fairness doctrine was part of the statute. Had Congress adopted this language, our analysis would be different. See Red Lion, 395 U.S. at 383-84, 89 S.Ct. at 1803. (Senator Proxmire’s amendment “constituted a positive statement of doctrine and was altered to the present merely approving language in the conference committee.”)

Congress did not, however, adopt the Proxmire amendment as contained in the Senate version of the bill. In reconciling the two drafts, the conference committee deleted the Senate language and substituted the previously mentioned proviso. The Conference Report further stated:

The conferees feel that there is nothing in this language which is inconsistent with the House substitute.

Id. Therefore, we cannot find that Congress intended the language of the amendment to create any new statutory obligation since there was no mention of such an obligation in the House Report. See Donovan v. Rose Law Firm, 768 F.2d 964, 974 (8th Cir.1985) (when forced to choose between a Senate report and a conference committee report to ascertain the intent of Congress, the better practice is to rely on the conference committee report).

The Committee also contends that a decision that the fairness doctrine is not codified will conflict with Supreme Court precedent and with the precedent of the majority of other circuits. We interpret the case law on the fairness doctrine differently.

In Red Lion, the Supreme Court upheld the fairness doctrine as a constitutionally permissible agency policy. The Committee contends that the Red Lion court also held that the 1959 amendment codified the fairness doctrine. We disagree. Red Lion contains dicta that could be interpreted to support the view that the 1959 amendment codified the fairness doctrine. See, e.g., id. 395 U.S. at 380, 89 S.Ct. at 1801 (“[t]he fairness doctrine finds specific recognition in statutory form_”); id. at 381, 89 S.Ct. at 1802 (“[h]ere the Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation”); id. at 382, 89 S.Ct. at 1803 (“[t]he objectives of § 315 themselves could readily be circumvented but for the complementary fairness doctrine ratified by § 315”). However, these statements are counter-balanced by others tending to support the contrary view that the 1959 amendment merely expressed congressional approval for the administrative system of fairness. See, e.g., id. at 380, 89 S.Ct. at 1801 (“[i]n other words, the amendment vindicated the FCC’s general view that the fairness doctrine inhered in the public interest standard”); id. at 385, 89 S.Ct. at 1804 (“we think the fairness doctrine ... [is] a legitimate exercise of congressionally delegated authority”). These apparent contradictions are all dicta; the issue of the codification of the fairness doctrine was not squarely before the Court in Red Lion. Our analysis is borne out by later Supreme Court opinions. In Columbia Broadcasting Sys., 412 U.S. at 113 n. 12, 93 S.Ct. at 2092 n. 12, for example, the Supreme Court described the 1959 amendment as giving “statutory approval to the Commission’s fairness doctrine.”

In addition to Red Lion, Columbia Broadcasting, and TRAC, a few other opinions touch on whether the 1959 amendment to section 315(a) of the Communications Act codifies the fairness doctrine. However, codification of the fairness doctrine was not at issue in any of those eases. Prior to TRAC, it was merely assumed that the 1959 amendment to section 315(a) codified the fairness doctrine.⁸ This position was taken by the FCC, and the court decisions reflect that assumption. However, no court prior to TRAC actually reached a holding on the issue.

For example, the Seventh Circuit described the 1959 amendment in dicta as explicitly including the fairness doctrine in the Communications Act, and ratifying the doctrine with positive legislation. Maier v. FCC, 735 F.2d 220, 223 n. 4, 5 (7th Cir.1984). The Maier court relied on Red Lion as authority for those statements. As we have already discussed, the issue of statutory codification was not before the Court in Red Lion, and therefore, these comments in Mai-er are not conclusive. The Fourth Circuit described the 1959 amendment as “pro-vid[ing] a statutory basis for the Commission’s pre-existing version of the fairness doctrine.” Larus & Bro. Co. v. FCC, 447 F.2d 876, 882 (4th Cir.1971). On the other hand, the First Circuit stated, again in dicta, that the 1959 amendment merely approved the general tenets of the fairness doctrine. Public Interest Research Group v. FCC, 522 F.2d 1060, 1066 (1st Cir.1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976).

Reading all of the eases together, we think that they reflect some uncertainty about the status of the fairness doctrine, rather than an unalloyed conclusion that the 1959 amendment to section 315(a) codified the doctrine. Thus, our decision in this case does not conflict with either Supreme Court precedent or the decisions of the other circuits.

Having concluded that the 1959 amendment to section 315(a) did not codify the fairness doctrine, we turn to the' Committee’s contention that a remand to the FCC is warranted. The Committee asserts that this court oversteps its authority by deciding the statutory codification issue on grounds other than those provided by the FCC. As support for this theory, the Committee relies on SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 464, 87 L.Ed. 626 (1943).

We think that the Committee misreads Chenery. In that case, the SEC applied broad equitable principles to a fiduciary carrying out a corporate reorganization. In doing so, the SEC made no factual findings with regard to misuse of the fiduciary position, honesty, fair dealings or fair pricing. Thus, the SEC recited no factual grounds for the decision it made. On appeal, the reviewing court supplied its own factual findings and affirmed the SEC. The Supreme Court reversed, noting that only the SEC was authorized to make the requisite factual findings under the regulatory scheme involved. However, the Supreme Court clearly limited Chenery to situations in which the agency failed to make a necessary determination of fact or of policy. Id. The Chenery Court expressly stated:

we do not disturb the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct although the lower court relied upon a wrong ground or gave a wrong reason. The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground. ■

Id at 88, 63 S.Ct. at 459 (citation omitted). The codification question we face involves’ neither a determination of fact nor a determination of policy. We therefore find the Committee’s reliance on Chenery to be misplaced.

Finally, the Committee suggests that by affirming the FCC’s decision on a basis other than that provided by the agency we run afoul of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We are frankly puzzled by this contention. Regardless of whether we employ our own reasoning, or adopt the reasoning from TRAC, the result is the same; ■ the fairness doctrine is not codified. Under Chevron, a reviewing court must first employ the “traditional tools of statutory construction” to determine whether Congress has expressed a clear intent on the issue at hand. Id. at 843 n. 9, 104 S.Ct. at 2781 n. 9.

Chevron .did not enumerate the “traditional tools” to be applied by the reviewing court in its quest for the intent of Congress, but the analysis conducted by the Chevron Court has been the road map for other courts. In the course of a Chevron analysis, a court must .first consider the actual words of the statute. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781 (the starting point for the interpretation of a statute must be its plain language.) If the intent of Congress is clear from the plain language .of the statutory provision, that will be the end of the judicial inquiry. Id. If analysis of the statutory language does not yield an unambiguous congressional intent, the court should then look to the legislative history.⁹ If congressional intent is clearly discernable, the agency must act in accordance with that intent and the court need not defer to the agency’s interpretation of its mandate. K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); see also Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9 (“the judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.”)

Therefore, we have not usurped any agency prerogative, but have merely provided an additional legal basis for a correct legal result. It is only when we turn to the second FCC finding, that “operation in the public interest” does not require the fairness doctrine, that the FCC has exercised its discretion and therefore that Chevron deference becomes an issue.

C. Operation in the Public Interest

In the Syracuse Peace Council cases, the FCC articulated its reasons for finding that the fairness doctrine no longer served the public interest. The Committee contends that Syracuse Peace Council was wrongly decided and that even if the decision was correct, it need not be extended to eliminate fairness requirements with regard to ballot issues. The FCC rejected this argument below. The Committee also argues that the FCC’s denial of its fairness petition was arbitrary and capricious and therefore that this court should accord no deference to the FCC decision.

Deference to an agency becomes an issue when the first part of a Chevron analysis does not yield a.clear congressional intent. Chevron, 467 U.S. at 843, 104 S.Ct. at 2781. In such eases, Congress delegated the interpretation and development of the statutory provision to the discretion of .the agency charged with enforcing the statute. Id. Therefore, Chevron requires that a reviewing court defer to the agency’s interpretation of an ambiguous statute if that interpretation is “permissible.” Good Samaritan Hosp. v. Shalala, — U.S. -, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993). In order to be “permissible,” the agency’s construction of the statute must be reasonable. Chevron, 467 U.S. at 844, 104 S.Ct. at 2782. As long as the interpretation proposed by the agency is reasonable, a reviewing court cannot replace the agency’s judgment with its own. Therefore, we cannot balance policy considerations, or choose among competing interests when evaluating the reasonableness of an agency action.¹⁰ See EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988).

We conclude that Congress did not codify the fairness doctrine in 1959. Therefore, our review of the FCC’s decision to eliminate the doctrine is limited to a determination of whether the FCC has reasonably interpreted the statutory requirement that licensees operate in the public interest. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 29, 107 S.Ct. 1207, 1220 n. 29, 94 L.Ed.2d 434 (1987). The Committee, and on rehearing the FCC, seem to claim that prong two of Chevron requires a more critical analysis than Supreme Court precedent would permit.

Under the 1934 Communications Act, the FCC is charged with interpreting the statutory mandate that stations operate in the public interest. For years, the FCC interpreted “operate in the public interest” as requiring the fairness doctrine. However, it is" -within the FCC’s discretion to alter its interpretation of “operate in the public interest” in light of changed circumstances. Good Samaritan Hospital, — U.S. at -, 113 S.Ct. at 2159.¹¹ As long as the FCC’s interpretation is consistent with its prior analysis, or cogently explains any change, the FCC may alter its interpretation of “operate in the public interest” to meet the changing realities of the broadcast industry. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 1275, 67 L.Ed.2d 521 (1981) (courts must accord substantial deference to the FCC’s judgment as to-how the public interest is best served because the weighing of policies under the public interest standard is .a task specifically delegated to them).

The Committee contends that an affir-mance of the FCC’s decision is incompatible with the Supreme Court’s directives for the second strand of a Chevron inquiry. They argue that the FCC’s interpretation of “operate in the public interest” to permit the abolition of the fairness doctrine was neither reasonable nor permissible. They also claim that the record before this court is inadequate to evaluate the challenged agency action. Therefore, the Committee asserts that a remand is required under Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985) (“if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation”). We disagree with the Committee’s contention that the FCC advanced no explanation for its decision, and therefore find remand to be unnecessary.

The FCC clearly articulated its reasons for abandoning the fairness doctrine in Syracuse Peace Council, and invoked those same reasons in this case. See Syracuse Peace Council v. WTVH, 2 FCC Rcd. 5043 (1987), aff'd., Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C.Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 717, 107 L.Ed.2d 737 (1990). In Syracuse Peace Council, the D.C. Circuit credited the FCC’s testimony that the dramatic increase in media outlets since 1959 eliminated the need for the fairness doctrine. In addition, the FCC presented testimony that the fairness doctrine actually chilled speech. We think this kind of judgment about the way the world of broadcasting works is precisely the type of determination that the FCC is better equipped to make than are the courts. The reasons advanced by the FCC in Syracuse Peace Council are undeniably reasonable explanations for the change in agency position. Therefore, while Syracuse Peace Council does not bind this court, we agree with that well-reasoned decision, and find the elimination of the fairness doctrine to be a permissible agency response to changed circumstances.

Wé also reject the Committee’s contention that the FCC did not articulate the reasons for its decision below. The FCC cited Syracuse Peace Council and that sufficed to identify the reasoning behind its decision in this case. We will not require the FCC to reinvent the wheel in each case and engage in endless repetitions of its reasoning. We note, however, that our decision in no way implicates the FCC’s discretion to determine whether “operate in the public interest” requires some notion of fairness. The fairness doctrine developed from the “operate in the public interest” requirement and that language is still part of the statute. The FCC is free to reasonably interpret this statutory mandate as it sees fit.¹²

IY. CONCLUSION

For the reasons stated above, the decision of the FCC is affirmed.

1 . The National Association of Broadcasters, the Radio-Television News Directors Association, and CBS, Inc. join KARK-TV as intervenors in this action.

2 . 47 U.S.C. § 315(a) is known as the "equal time provision." This section requires that any licensed television or radio broadcast station which permits “a legally qualified candidate for any public office to use a broadcasting station, ... shall afford equal’ opportunities to all ■ other such candidates for .that office in the use of such broadcasting station.”

3 . We also note that if the Committee succeeds on the merits of its claim, it may he able to use the fairness doctrine violation to challenge KARK-TV’s next application for license renewal. Therefore, a live disputé still exists between the parties.

4 . Amendment 2 proposed changes to the Arkansas usury laws which would have altered the interest rates for consumer loans. The Committee has indicated that the defeat of Amendment 2 in the 1990 election has not ended debate on this issue of public importance, and that the advocates of Amendment 2 continue to seek changes in Arkansas' usury laws. The Committee continues its opposition to any such changes of Arkansas law. Therefore, we must conclude that disputes over the public issues raised by Amendment 2 are likely to recur between the Committee and KARK.

5 . KARK suggests that the Committee could have intervened in prior proceedings before the FCC and therefore should not be permitted to bring the present action. Specifically, they contend that the Committee should have intervened in Syracuse Peace Council. This court is baffled by such reasoning. The controversy in Syracuse Peace Council arose in 1982, and was finally resolved in 1989, a full year before the ballot referendum at issue in this case. The Committee had no grounds to intervene in that prior proceeding. We remind KARK that agency adjudication should not he confused with notice and comment rulemaking. While it may be proper to bar those who failed to take advantage of an opportunity to challenge general rules during the process of notice and comment rulemaking from seeking judicial review, the same is not true of administrative adjudication. See Natural Resources Defense Council v. Nuclear Regulatory Comm’n, 666 F.2d 595, 602, n. 42 (D.C.Cir.1981) (to bar review because the petitioner was not a party to proceedings in which, by definition it could not join, would be to exalt literalism over common sense).

6 . The D.C. Circuit found that the language used in the 1959 amendments made congressional intent unambiguous. TRAC v. F.C.C., 801 F.2d 501, rehearing en banc denied, 806 F.2d 1115 (D.C.Cir.1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987). Relying on the fact that Congress used the preposition "under” rather than the preposition "by" in the relevant section of the amendment, the TRAC court concluded that the 1959 amendment unambiguously did not codify the fairness doctrine. We do not think that this choice of words alone can determine the outcome of the statutory codification issue. The amendment refers to:

the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

47 U.S.C. § 315(a) (emphasis added). There can be no doubt that "to operate in the public interest" is an obligation imposed “by " the act, as well as “under” the act. See 47 U.S.C. §§ 303, 307, 309; National Broadcasting Co. v. United States, 319 U.S. 190, 218, 63 S.Ct. 997, 1010, 87 L.Ed. 1344 (1943); Red Lion, 395 U.S. at 380, 89 S.Ct. at 1801. Although the TRAC analysis is certainly tenable, we think the panel's analysis of the amendment in the context of its legislative history is the better approach. However, this difference in approach is not one of great weight. Regardless of whether we adopt the reasoning of TRAC or of the panel decision, the restdt will be the same; an unambiguous congressional intent not to codify the fairness doctrine.

7 . The fairness doctrine has been significantly modified in the years subsequent to the 1959 amendment, and the Committee makes no claim that these modifications were impermissible. Therefore, the fairness doctrine, as it existed in 1959 must not have been codified by the amendment. We reject as overly speculative and.vague the contention that Congress codified a general notion of fairness through the amendment.

8 . We note that prior to TRAC, the D.C. Circuit had stated on more than one occasion that the language in section 315(a) "codified the fairness doctrine as it was formulated by the FCC in its 1949 Report on Editorializing by Broadcast Licensees." See Kennedy for President Comm. v. FCC, 636 F.2d 432, 438 (D.C.Cir.1980). See also Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1007 n. 11 (D.C.Cir.1976) (the doctrine which originally evolved under the authority of general provisions of the Act "has since received explicit statutory recognition in the 1959 amendment.").

9 . The Committee seems to contend that this first step of a Chevron analysis involves exclusively an examination of the plain language of the statute. They object to this court’s review and interpretation of the legislative history of the 1959 amendment. If that is indeed their position, the Committee has misunderstood Chevron. Under Chevron, a court must conduct an independent review of the statute and of its legislative history. Statutory interpretation is, after all, the expertise of the court. Deference to the agency is appropriate only when a court finds the statute to be ambiguous. See NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 134, 108 S.Ct. 413, 416, 98 L.Ed.2d 429 (1987) (Scalia, J. concurring).

10 . While we need not find the agency interpretation to be the best available interpretation of the statute, the agency interpretation cannot conflict with the language of the statute. See K Mart Corp., 486 U.S. at 294, 108 S.Ct. at 1819 (where no reasonable interpretation can support the agency’s interpretation, deference is inappropriate).

11 . We note that an agency interpretation of a statutory provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. Watt v. Alaska, 451 U.S. 259, 273, 101 S.Ct, 1673, 1681, 68 L.Ed.2d 80 (1981). However, we keep in mind the caution that:

[r]egulatoiy agencies do not establish rules of conduct to last forever; they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation’s needs in a volatile, changing economy.

American Trucking Ass’n, Inc. v. Atchison Topeka & Santa Fe Ry. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847 (1967)).

12 . While nothing in our decision prevents the FCC from reinstating the fairness doctrine should the agency determine that “operate in the public interest” so requires, such a course of action would inevitably raise constitutional questions. However, those issues are not properly before us at this time, and we advance no opinion as to the continued constitutionality of the fairness doctrine. Were it proper to consider the issue. Judges Bowman, Beam and Loken agree with Chief Judge Arnold that the holding in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969) may well be reconsidered by the Supreme Court now that broadcast frequencies and channels have become much more available.