LENORA B. FULANI V. FEDERAL COMMUNICATIONS COMMISSION
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
49 F.3d 904 March 15, 1995, Decided
JOSE A. CABRANES, Circuit Judge:
This case concerns the "equal opportunities" or "equal time" requirement of the Communications Act of 1934. Under this provision, when a licensed broadcast station permits any "legally qualified candidate for any public office" to "use" a station, the licensee must provide all other legally qualified candidates with an equal opportunity to use its facilities. The Act exempts from the equal opportunity requirement four categories of "news" events, including "bona fide news interviews." The issue before us is whether the Federal Communications Commission acted reasonably in exempting as a bona fide news interview a live appearance by Ross Perot on ABC.
In the late evening of June 29, 1992, ABC aired a special program entitled, "Who is Ross Perot?," which included a live appearance by Ross Perot -- a then-undeclared independent candidate for President of the United States in the 1992 election -- before a studio audience. Petitioner Lenora B. Fulani, another independent candidate for the presidency, filed a request for an equal opportunity to appear on ABC, pursuant to § 315(a). ABC denied Fulani's request. Subsequently, Fulani filed a complaint with the FCC.
In a letter ruling dated October 21, 1992, the FCC's Mass Media Bureau concluded that the "Who is Ross Perot?" telecast was exempt from the equal opportunity requirement as a "bona fide news interview." For a broadcast to qualify for this exemption, FCC case law requires that it be "regularly scheduled," The Mass Media Bureau found that "Who is Ross Perot?" met this requirement, because it was, in fact, an edition of ABC's "Nightline" series.
On May 16, 1994, the FCC issued an opinion affirming the findings of the Mass Media Bureau and denying Fulani's "application for review." Pursuant to 47 U.S.C. § 402(a) (1988) Fulani now seeks review of this order. We hold that the FCC acted reasonably in finding that Fulani was not entitled to an equal opportunity, and thus we deny her petition for review.
In the late spring and early summer of 1992, the American public was captivated by the possibility of Ross Perot's independent candidacy for President of the United States in the general election of Nov. 3, 1992. At the height of the Perot arabesque, ABC put together a two-part package collectively entitled "Who is Ross Perot?," which aired the night of June 29, 1992, spilling into the early morning of June 30.
The first part of the telecast, which aired from 10 to 11 p.m. Eastern Standard Time, consisted of an edited documentary profile of Perot. The second part, which began at 11:30 p. in. and ran until 1: 10 a. in., was broadcast live and carried the subtitle " National Town Meeting." During the live segment, Perot appeared in person before a studio audience in New York, with additional audience members in ABC studios across the nation electronically linked.
ABC news anchor Peter Jennings hosted the live segment of the telecast, opening it by welcoming viewers to "a National Town Meeting with Ross Perot, undeclared candidate for president." Jennings explained the rationale for the "town meeting" format as follows:
Earlier this evening, we devoted an hour to several episodes of Mr. Perot's career which, in our view, help Lis all to better understand who he is. He has developed something of a reputation for not thinking very much of the press inquiring into his past, suggesting on other occasions that we prevent him from having direct access to the voters. Well, tonight is a chance for him to interact with what we hope is a broad representation of his fellow citizens, who join us live, at our invitation, in 10 different cities.The town meeting consisted of a question-and-answer session, with audience members asking questions of Perot -- questions that had been screened in advance by ABC, and whose order had been predetermined by ABC's broadcast booth.
More than two months after ABC's denial of Fulani's equal opportunity request, Fulani filed a complaint with the FCC. The complaint, dated September 11, 1992, alleged that the live segment of "Who is Ross Perot?" did not meet the requirements for the "bona fide news interview" exemption, because it was a one-time news special rather than an edition of a "regularly scheduled" series.
Pursuant to 47 U.S.C. § 402(a), Fulani now seeks review of the
order of the FCC. This case presents two questions: (1) whether the FCC
erred in exempting ABC's "Who is Ross Perot?" from the equal opportunity
requirement as a "bona fide news interview," and (2) whether the FCC erred
in denying Fulani's request to conduct an evidentiary hearing.
Section 315(a) of the Communications Act of 1934 -- commonly known as the "equal opportunity" or "equal time" provision -- requires that when a licensed television or radio station "permits any . . . legally qualified candidate for any public office to use a broadcasting station," the licensee "shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station." 47 U.S.C. § 315(a) (1988).
In 1959, Congress amended Section 315(a) to exempt four categories of
broadcast materials from the statutory equal opportunity requirements:
(1) bona fide newscasts,
(2) bona fide news interviews,
(3) bona fide news documentaries (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto).
The FCC subsequently adopted in its case law the criteria suggested in the legislative history, prescribing three requirements that a broadcast must meet to qualify for a § 315(a)(2) exemption as a bona fide news interview. First, the program must be "regularly scheduled." Second, the broadcaster must have "control" over the program. Third, the broadcaster's decisions regarding "format, content and participants [must be] based on his reasonable, good faith journalistic judginent rather than on an intention to advance the candidacy of a particular person." Fulani does not challenge the validity of these criteria, but rather their application by the FCC in this case.
1. "Regularly Scheduled"
The central dispute between Fulani and the FCC is whether the Commission's finding that "Who is Ross Perot?" met the "regularly scheduled" test was arbitrary and capricious. Fulani first argues that the FCC's conclusions create an unprecedented exemption for what she calls "time blocks," allegedly in violation of the clear statutory purpose. Second, she argues that the FCC abused its discretion in holding that "Who is Ross Perot?" and "Nightline" were one and the same. To this end, she points out several disparities between the Ross Perot telecast and the usual format of "Nightline": (1) the word "Nightline" never appeared on the broadcast; (2) the Usual host of "Nightline," Ted Koppel, did not appear; (3) the live segment of the Perot broadcast ran for approximately 100 minutes, far more than the 30 minutes usually allotted to "Nightline"; and (4) the "town meeting" format employed by "Who is Ross Perot?" had never been used by "Nightline" in connection with a political candidate's appearance.
The issue of whether a telecast with the characteristics of "Who is Ross Perot?" falls within Congress' intent in adopting the news interview exemption from the equal opportunities requirement is one to which Congress has not "directly spoken." On this score, both the statute and the relevant legislative history are "silent or ambiguous," The "regularly scheduled" requirement is itself derived from the legislative history, but those materials do not compel any particular interpretation of the requirement by the FCC. Hence, the question before us is whether the FCC's construction of the "regularly scheduled" requirement of Section 315(a)(2) was "permissible."
So long as the FCC's finding that the broadcast met the "regularly scheduled" requirement was "rational and consistent" with § 315(a), it should be regarded on appeal as "permissible." Based on our review of the record, we find that the Commission's decision meets this standard, notwithstanding the deviations in the Perot telecast from the typical "Nightline" format. Since April 1988, "Nightline" had on thirteen occasions employed the sarne "town meeting" format used in "Who is Ross Perot?," occasionally without using "Nightline" in the title, and occasionally without employing Ted Koppel as host, In addition, "Nightline" had on many occasions run longer than its scheduled time period. Fulani pointed out during oral argument that the several occasions in which "Nightline" adopted a "town meeting" format, used a host other than Koppel, or ran overtime, constituted only a small fraction of the shows in the series. But for a certain format to qualify as "regularly scheduled," there is no rigid requirement that it run on a daily or weekly basis; for example, the FCC has held that quarterly programs may qualify as "regularly scheduled" news interviews. Thus, in short, we find that the FCC's finding that ABC's Perot telecast met the "regularly scheduled" requirement was "based on a permissible construction of" § 315.
The second component of the § 315(a)(2) inquiry is whether the broadcaster exercises "sufficient control over the content and format of the program." The Commission found that Jennings -- and not Perot -- was in control of the program. Fulani argues that the FCC abused its discretion in so holding.
The issue of sufficiency of journalistic control is a mixed question of law and fact; thus, we bring the "reasonable basis" standard to bear on the FCC's decision that ABC did exercise control. Viewing the FCC's decision through the lens of this standard of review, we find that there was a reasonable basis for the FCC's finding that Jennings, and not Perot, was in control of the proceedings. First, Fulani claims that Jennings "turned the microphone over to Perot" at the outset of the live segment of the broadcast, and she underscores Jennings's telling Perot, "Be my guest." From our reading of the transcript, however, we conclude that this episode was a limited opportunity for Perot to respond to the documentary on his career that ABC had just aired, not a transfer of control. Perot was not given carte blanche to give a campaign speech; characteristic of the typical news interview, Perot's remarks were frequently interrupted by Jennings's questions or elicitations of clarification. Nor are we persuaded by Fulani's argument that Jennings's questioning was too passive to establish control on the part of the network, or that an episode during the telecast -- in which Jennings apologized for interrupting Perot's response and allowed Perot to continue speaking about the documentary segment -- was probative of a shift of control by ABC to Perot.
[This exchange occurred during the part of Perot's response in which he described his efforts to raise consciousness about possible prisoners-of-war in Laos, Cambodia and Vietnam. Jennings interjected, asking whether Perot would send out search teams if he were elected president.
PEROT: I'm not finished talking about your program. Could I finish?
JENNINGS: Yes, sir.
PEROT: Then I'll be glad to answer your question.
JENNINGS: My apologies.
PEROT: No problem.]
Thus, we find Fulani's arguments inadequate to rebut the proposition that there was a "reasonable basis" for the FCC's decision that ABC exercised journalistic control sufficient to rneet the second requirement of the § 315(a)(2) "bona fide news interview" exemption.
3. "Reasonable, Good Faith Journalistic Judgment"
The third requirement of the § 315(a)(2) exemption is that the broadcaster's decisions regarding "format, content and participants are based on his reasonable, good faith journalistic judgment rather than on an intention to advance the candidacy of a particular person ...
We find that there was a "reasonable basis" for the FCC's finding that ABC's decisions were not motivated by an intention to advance Perot's candidacy. Our review of the transcript leads us to believe that the tenor of the proceedings was as critical as it was flattering, generally evidencing no undue favoritism by ABC toward Perot.
In sum, we defer to the FCC's rational and reasonable finding that ABC's
"Who is Ross Perot?" telecast met the requirements for a "bona fide news
interview" exemption under § 315(a)(2). As a general matter, we find
that the FCC's decision was fully consistent with the policies underlying
the equal time requirenient and the exemptions thereto.