Petition for Review of a Memorandum Opinion and Order of the Federal Communications Commission Released February 25, 1983. William J. Tricarico, Secretary FCC No. 83-82, 32872.
Eschbach, Posner and Flaum, Circuit Judges. Posner, Circuit Judge, dissenting.
Petitioner Henry W. Maier, the mayor of Milwaukee, Wisconsin, petitions this court for review of an order of the Federal Communications Commission. In that order, the Commission refused to take action against the intervenor in this case, WTMJ, Inc., for what the petitioner claims were violations of the fairness doctrine and the personal attack rule. For the reasons stated below, we affirm the Commission's decision to reject the petitioner's complaint.
The intervenor, WTMJ, Inc. (WTMJ), is a wholly-owned subsidiary of Milwaukee Journal, Inc., and is licensed to operate an AM radio station, WTMJ; an FM radio station, WKTI; and a television station, WTMJ-TV. Between March 2, 1981, and May 6, 1981, WTMJ broadcast over its three facilities a series of fifteen editorials relating to two controversial issues of public importance: the manner in which the city of Milwaukee was managing its garbage collection system, and the manner in which the city of Milwaukee was handling its labor disputes involving fire, police and garbage collection employees. The editorials were critical of city management and city officials, and a number of the editorials specifically mentioned the petitioner.
On June 5, 1981, the petitioner filed a complaint with the Commission. After being informed by the Commission's staff of certain deficiencies in his complaint, the petitioner submitted an amended complaint, on September 16, 1981. In this complaint, he alleged that WTMJ "in setting forth [its] views on controversial issues of public importance in the editorials referred to above [has] presented only one side of the issue in [its] overall programming," in violation of the fairness doctrine. Pet. App. at 148. The petitioner also contended that WTMJ had violated the Commission's personal attack rule, 47 C.F.R. § 73.1920 (1982), by broadcasting an attack on the petitioner's personal qualities and then failing to provide him with an opportunity to respond. Pet. App. at 129-30. As a remedy for these alleged violations, the petitioner asked that WTMJ be reprimanded, that the petitioner be provided with at least one-half hour free air time of his own choosing on each of WTMJ's broadcast outlets, and that WTMJ be required at its own expense to broadcast viewpoints opposed to its editorial position on the two issues addressed in the petitioner's complaint.
Upon review of the petitioner's complaint, the Commission's Broadcast Bureau requested WTMJ to respond to the petitioner's allegations. WTMJ filed its response on December 16, 1981, admitting that its editorials addressed controversial issues of public importance and thus triggered obligations under the fairness doctrine, but denying that those obligations had been breached. The petitioner filed a reply on February 1, 1982. By letter dated July 29, 1982, the Broadcast Bureau denied the petitioner's amended complaint.
On September 1, 1982, the petitioner filed an application for review before the Commission. Opposition to the application was filed by WTMJ two weeks later. By a memorandum opinion and order dated February 25, 1983, the Commission denied the application for review, finding that WTMJ had not violated either the fairness doctrine or the personal attack rule. The petitioner appeals from this decision.
As a threshold matter, we must decide whether the Commission's order denying the petitioner's complaint is reviewable, and, if so, whether the petitioner has standing to appeal the order.
A person or organization who believes that a broadcaster is not meeting its fairness doctrine obligations first must complain to the broadcaster. See Democratic National Committee v. FCC, 230 U.S. App. D.C. 414, 717 F.2d 1471, 1475 (D.C. Cir. 1983). If the broadcaster's response is not satisfactory, that person or organization then may file a complaint with the Commission. Id. The complaint must present prima facie evidence of a fairness doctrine violation before the Commission will request a response to the complaint from the broadcaster. Id. The requirement of making out a prima facie case is "a formidable procedural barrier," id., that only a small percentage of complainants manage to surmount. Id. at 1478-79 n.5. Where this barrier is surmounted, as it was in this case, the Commissioner will conduct an inquiry and issue a ruling. When the Commission finds a fairness doctrine violation, the broadcaster may appeal this ruling, see, e.g., NBC v. FCC, 516 F.2d 1101 (D.C. Cir. 1974).*fn1 Whether a complainant may appeal when the Commission finds no fairness doctrine violation is the question we address here.
We note that this question has not been briefed or discussed by any of the parties or the amici, presumably because they did not believe it to be in dispute. This is understandable, since several courts of appeals have permitted appeals such as the one before us without even mentioning the issues of reviewability and standing. See, e.g., Democratic National Committee v. FCC, 230 U.S. App. D.C. 414, 717 F.2d 1471 (D.C. Cir. 1983); American Security Council Education Foundation v. FCC, 197 U.S. App. D.C. 124, 607 F.2d 438 (D.C. Cir.), cert. denied, 444 U.S. 1013, 62 L. Ed. 2d 642, 100 S. Ct. 662 (1979); Neckritz v. FCC, 446 F.2d 501 (9th Cir. 1971). See also Council For Employment and Economic Energy Use v. FCC, 575 F.2d 311 (1st Cir. 1978) (holding, without analysis, that the petitioner had standing to appeal the denial of its fairness doctrine complaint). For the reasons stated below, we agree with the implicit holding of these opinions, that a party whose fairness doctrine complaint is denied by the Commission may seek judicial review of that denial.*fn2
As enacted by Congress, the Communications Act of 1934, ch. 652, 48 Stat. 1064 (codified as amended at 47 U.S.C.) provided a comprehensive scheme of federal regulation of wire and radio communication. See generally Xavier University v. National Telecommunications, 658 F.2d 306 (5th Cir. 1981). The Act established the Commission at the center of this scheme and charged it with "execut[ing] and enforc[ing] the provisions of the Act." 47 U.S.C. § 151 (1976). Because the Commission was given both enforcement and decision-making responsibilities, see S.Rep. No. 781, 73d Cong., 2d Sess. 8-10 (1934), Congress also provided for judicial enforcement and review of its orders. As amended, the Act provides for review of Commission rulings in the United States courts of appeals:
Any proceeding to enjoin, set aside, annul or suspend any order of the Commission under this chapter . . . shall be brought as provided by and in the manner prescribed in chapter 158 of Title 28.
47 U.S.C. § 402(a) (1976). Chapter 158 of Title 28 contains the following:
The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of --
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47; . . .
28 U.S.C. § 2342 (1976). The Communications Act also provides for judicial review of certain Commission decisions exclusively in the United States Court of Appeals for the District of Columbia Circuit. 47 U.S.C. § 402(b) (1976).
The petitioner in this case has sought review, we believe properly, under sections 402(a) and 2342. Judge Posner argues in his separate opinion, however, that when the Commission rules that the fairness doctrine has not been violated it is exercising prosecutorial discretion, and that therefore its ruling is not reviewable. This position relies on section 10 of the Administrative Procedure Act (APA), which states that judicial review of agency action is available except "to the extent that . . . agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2) (1982).*fn3 However, Judge Posner's approach fails to appreciate that this exception to the reviewability of agency action is a "very narrow exception," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), and that there is always a "strong presumption" that agency action is reviewable. Dunlop v. Bachowski, 421 U.S. 560, 567, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975). Indeed, it is well-settled law that "judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). "Only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review." Id. at 141 (citations omitted). See also Morris v. Gressette, 432 U.S. 491, 500-01, 53 L. Ed. 2d 506, 97 S. Ct. 2411 (1977); Barlow v. Collins, 397 U.S. 159, 165-67, 25 L. Ed. 2d 192, 90 S. Ct. 832 (1970); Peoples Gas, Light and Coke Co. v. United States Postal Service, 658 F.2d 1182, 1190 (7th Cir. 1981). Judge Posner has not offered, nor can we find, any "clear and convincing evidence," or evidence of any kind, of congressional intent to exempt actions of the Commission such as the one in this case from judicial review.
Although our inquiry could end here, it is worth stressing that we have several positive reasons for finding that the Commission's order is reviewable. The most obvious reason is the Communications Act itself. Unlike other statutes under which the Supreme Court has found a right to judicial review, see, e.g., Dunlop v. Bachowski, 421 U.S. at 566-71 (nothing in the Labor-Management Reporting and Disclosure Act prohibits judicial review of the Secretary of Labor's decision not to sue), the Communications Act actually contains a section, section 402, that explicitly provides for judicial review. This fact is significant because it reinforces the already strong presumption of reviewability applicable to this case. Although section 402 does not refer specifically to the type of Commission decision at issue here, disappointed fairness doctrine complainants seeking judicial review repeatedly have relied on section 402 without question. Congress has amended the Communications Act several times, but it has done nothing to limit judicial review of the Commission's rulings on fairness doctrine complaints, a fact we find significant. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-82, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969).*fn4
We also find it noteworthy that the Commission itself has not advanced the position that its denial of a fairness doctrine complaint is not reviewable. From this fact it is reasonable to infer that the Commission construes section 402 as providing a basis for judicial review in cases such as this one. It is a "venerable principle" of law that "the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong . . . ." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 381. This is especially true where, as here, ...