CBS, Inc. v. Federal Communications Commission

RESPONDENT: Federal Communications Commission
LOCATION: CBS Broadcast Center

DOCKET NO.: 80-207
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 453 US 367 (1981)
ARGUED: Mar 03, 1981
DECIDED: Jul 01, 1981
GRANTED: Nov 03, 1980

Floyd Abrams - on behalf of Petitioner National Broadcasting Company, Inc
Stephen M. Shapiro - on behalf of the Respondents, The Federal Communications Commission and The United States

Facts of the case

On October 11, 1979, the Carter-Mondale Presidential Committee (CMPC) requested time for a thirty-minute program from each of the three major television networks on behalf of President Jimmy Carter. Columbia Broadcasting System, Inc. (CBS) refused to make the requested time available, emphasizing in part the potential disruption of regular programming. CBS offered to sell the CMPC two five-minute segments instead. The American Broadcasting Companies (ABC) and the National Broadcasting Company (NBC) each replied that it had not yet begun to sell political time for the 1980 presidential campaign. On October 29, 1979, the CMPC filed a complaint with the Federal Communications Commission (FCC), charging that the networks violated their obligations under the Federal Communications Act.

The Federal Communications Act of 1934, as modified by the Federal Election Campaign Act of 1971, authorized the FCC to revoke broadcasting station licenses for willful or repeated failure to allow reasonable access or failure to permit the purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for federal elective office. On November 26, 1979, the FCC ruled in a four-to-three vote that the networks violated the act, rejecting the networks’ arguments that Congress did not intend the act to create a new right of access to the broadcast media and that the FCC improperly substituted its judgment for the networks’ in evaluating the CMPC’s request for time.

Following the seizure of American embassy personnel in Iran in November 1979, the CMPC decided to postpone the broadcast of its thirty-minute program; it successfully purchased five minutes of time from CBS, and later purchased thirty minutes of time for the full program from ABC and NBC. Throughout these negotiations, however, all parties maintained their rights relating to the appeal to the FCC’s decision. The United States Court of Appeals, D.C. Circuit, affirmed the FCC’s decision. It held that the act created a new, affirmative right of access to broadcast media for candidates for federal office and that the FCC had the authority to evaluate whether a campaign has begun for purposes of the statute.


1. Did the Federal Communications Act create a new, individual right of broadcast access for the Carter-Mondale Presidential Committee, as the representatives of a candidate for federal office?

2. Did the act authorize the Federal Communications Commission to determine the beginning of the 1980 presidential campaign for purposes of the act and to assess the specific broadcast needs of the CMPC?

3. Did CBS have the right to decline to sell thirty minutes of broadcast time to the CMPC under the First Amendment?

Media for CBS, Inc. v. Federal Communications Commission

Audio Transcription for Oral Argument - March 03, 1981 in CBS, Inc. v. Federal Communications Commission

Warren E. Burger:

We'll hear arguments first this morning in CBS v. The Federal Communications Commission and the related cases.

Floyd Abrams:

What the Carter-Mondale campaign said was that you should tell the network to sell the time on one of the evenings that we are requesting it and that is, in effect, precisely what the Commission did.

Warren E. Burger:

Mr. Abrams, you may proceed whenever you are ready.

Floyd Abrams:

Mr. Chief Justice and may it please the Court:

This consolidated case comes to this Court on writs of certiorari to the U.S. Court of Appeals for the District of Columbia.

It involves a decision of that court affirming two 4 to 3 rulings of the Federal Communications Commission that ABC, CBS and NBC violated Section 312(a)(7) of the Federal Communications Act by declining to sell one half hour of prime time on their networks to the Carter-Mondale Committee during a specified four-day period, during the first week in December of 1979... a time 11 months before the national election, 8 months before the Democratic National Convention, almost three months before the first primary, and over a month and a half before the first official contest of any sort in which there was voter participation... the Iowa caucus.

I wish to emphasize that this was not an application for time in Iowa, with respect to the Iowa caucus... which was, as I've said, about a month and a half away; this was for time from the national networks to be broadcast on those national networks around the nation.

And it is the failure of the networks to sell the precise time sought at the time it was sought that the Commission has found in the statute's language, unreasonable; even though CBS, for example, immediately offered to sell two five-minute periods of time during the time-periods that it was sought, and ABC offered to sell time in the first week of January of 1980.

The facts of the case are easily stated and, I think, not disputed.

In October 1979, letters were written on behalf of the Carter-Mondale campaign to each of the three networks, seeking to purchase a half hour of time during specified time-periods in the first week of December.

It was said in these letters that the needs of the Carter-Mondale campaign were such that the time was required to kick off the campaign.

Each of the networks declined to sell precisely the time that was requested, on the evenings that they were sought.

Each made a submission, first to the Carter-Mondale campaign by way of response, and then to the Commission.

When a complaint was filed there, setting forth their reasons, as I said... CBS made an immediate offer to sell two five-minute periods of time; ABC advised that it would sell time in early 1980 and prior to the time the Commission ruled, offered to sell time in the first week of January, 1980.

NBC initially declined to sell the half-hour at the time that it was sought, and when a half hour was sought in early January, NBC offered to sell it at that time.

The length of time before the election and the amount of potential requests for equal opportunities under Section 315 of the Federal Communications Act, and other requests for time were cited separately by each of the networks in their responses.

ABC and NBC pointed, for example, to the fact that they had not sold national network time in the 1976 election until March and April of that election year.

CBS pointed to the fact that it had already received requests from the Connally campaign on September 14th and the Reagan campaign on September 21.

Potter Stewart:

The statute involved here was not in effect in 1976, was it?

Floyd Abrams:

It was in effect in 1976, it never resulted in any litigation.

Potter Stewart:

But it was in effect at the time that the--

Floyd Abrams:


It was passed in 1972.

Potter Stewart:

--Passed in--

Floyd Abrams:

Seventy-two, the Federal Election Campaign Act.

On its face, this statute, which is Section 312(a)(7) is one of 7 subsections of Section 312(a) of the Federal Communications Act, setting forth acts that can lead to license revocation.

The list is simple, of course I won't read it, but it includes such things as the making of false statements on the application for a license, the violation of cease and desist orders of the Commission, the willful or repeated failures to operate substantially as set forth in the license and the like.

None of these imposed any new, substantive obligations.

All of them imposed the risk of sanctions upon the networks or of the stations involved, broadcast stations, it was said if there was violation.

Our section, the one at issue today as adopted in the Federal Election Campaign Act prohibits the following: willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time of time for the use of a broadcast station by a legally qualified candidate for federal elective office on behalf of his candidacy.