James L. McHugh, Jr., Washington, D. C., with whom Randolph J. May, Washington, D. C., was on the brief for intervenor, The Corporation for Public Broadcasting. Richard M. Schmidt, Jr., Washington, D. C., also entered an appearance for intervenor The Corporation for Public Broadcasting.

Theodore D. Frank, Washington, D. C., with whom Eric H. Smith, Harry M. Plotkin and Ronald A. Cass, Washington, D. C., were on the brief for intervenor Public Broadcasting Service.

Richard D. Marks, Washington, D. C., with whom Daniel W. Toohey, Washington, D. C., was on the brief for intervenor, The University of Maine, and others.

Vernon L. Wilkinson, Washington, D. C., entered an appearance for intervenor, Educational Broadcasting Corp.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge and WEIGEL,* United States District Judge for the Northern District of California.

Opinion for the Court filed by Chief Judge BAZELON.

BAZELON, Chief Judge.

Accuracy in Media, Inc. (AIM) filed two complaints with the FCC against the Public Broadcasting Service (PBS) concerning two programs distributed by PBS to its member stations. AIM alleged that the programs, dealing with sex education and the American system of criminal justice, were not a balanced or objective presentation of each subject and requested the FCC to order PBS to rectify the situation. The legal basis for AIM's complaints was the Fairness Doctrine1 and 47 U.S.C. § 396(g)(1)(A) (1970). On its initial hearing of the matter, the FCC concluded that the PBS had not violated the Fairness Doctrine and invited comments from interested parties on its authority to enforce whatever standard of program regulation was contained in § 396(g)(1)(A).2 AIM does not seek review of the Commission's decision on the Fairness Doctrine issue.

Section 396(g)(1)(A) is part of the Public Broadcasting Act of 1967, an act which created the Corporation for Public Broadcasting (CPB) and authorized it to fund various programming activities of local, non-commercial broadcasting licensees.3 Section 396(g)(1)(A) qualifies that authorization in the following language:

In order to achieve the objectives and to carry out the purposes of this subpart, as set out in subsection (a) of this section, the Corporation is authorized to

(A) facilitate the full development of educational broadcasting in which programs of high quality, obtained from diverse sources, will be made available to noncommercial educational television or radio broadcast stations, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature. . . .

AIM contends that since the above-mentioned PBS programs were funded by the CPB, pursuant to this authorization, the programs must contain "strict adherence to objectivity and balance", a requirement AIM contends is more stringent than the standard of balance and fairness in overall programming contained in the Fairness Doctrine.4 AIM alleges that the two relevant programs did not meet this more stringent standard of objectivity and balance.

After consideration of the comments received on the matter, invited in its preliminary decision discussed above, the Commission concluded that it had no jurisdiction to enforce the mandate of § 396(g)(1)(A) against CPB.5 Having reached this result, the Commission thought it inappropriate to comment on what standard of program regulation was established by § 396(g)(1)(A) and whether that standard was more stringent than the Fairness Doctrine. The Commission did not explicitly consider whether the standard of § 396(g)(1)(A), whatever that standard might be, could be enforced against individual noncommercial licensees under the traditional jurisdictional grants contained in the Federal Communications Act. AIM petitions for review of the Commission's decision arguing that the Commission wrongly concluded that it had no jurisdiction to enforce the mandate of § 396(g)(1)(A) against CPB. We affirm the Commission's decision and deny the petition for review. After describing in Part I the present system of public broadcasting, we conclude in Part II for essentially the same reasons advanced by the Commission that the Commission does not have jurisdiction to enforce the mandate of § 396(g)(1)(A) against the CPB.

I. The Organization of Public Broadcasting in the United States

Resolution of the issues raised by AIM's petition requires an understanding of the operation of the public broadcasting system. There are three tiers to this operation, each reflecting a different scheme of governmental regulation. The basic level is comprised of the local, noncommercial broadcasting stations that are licensed by the FCC6 and, with a few exceptions,7 subject to the same regulations as commercial licenses. Through the efforts of former Commissioner Frieda Hennock, the FCC has reserved exclusive space in its allocation of frequencies for such noncommercial broadcasters.8 Other than this specific reservation, noncommercial licenses are still subject to the same renewal process and potential challenges as their commercial counterparts.

Such was the state of the public broadcasting system until the passage of the Educational Television Facilities Act in 1962.9 The Act added the element of government funding to public broadcasting by establishing a capital grant program for noncommercial facilities. This second level of the system was reorganized and expanded by the Public Broadcasting Act of 196710 which created the Corporation for Public Broadcasting (CPB). The Corporation, the product of a study made by the Carnegie Commission on Educational Television,11 was established as a funding mechanism for virtually all activities of noncommercial broadcasting. In setting up this nonprofit, private corporation, the Act specifically prohibited CPB from engaging in any form of "communication by wire or radio."12

The third level of the public broadcasting system was added in 1970 when CPB and a group of noncommercial licensees formed the Public Broadcasting Service (PBS) and National Public Radio.13 The Public Broadcasting Service operates as the distributive arm of the public television system. As a nonprofit membership corporation, it distributes national programming to approximately 150 educational licensees via common carrier facilities. This interconnection service is funded by the Corporation (CPB) under a contract with PBS; in addition, much of the programming carried by PBS is either wholly or partially funded by CPB. National Public Radio provides similar services for noncommercial radio. In 1974, CPB and the member licensees of PBS agreed upon a station program cooperative plan14 to insure local control and origination of noncommercial programming funded by CPB. Though PBS is the national coordinator under this scheme, it is not a "network" in the commercial broadcasting sense, and does not engage in "communication by wire or radio," except to the extent that it contracts for interconnection services.

II. FCC Jurisdiction Over the Corporation for Public Broadcasting

With the structure of the public broadcasting system in view, we turn to AIM's contention that the FCC should enforce the mandate of § 396(g)(1)(A) against the CPB. Since the Section is clearly directed to the Corporation and its programming activities, we have no doubt that the Corporation must respect the mandate of the Section. However, we conclude that nothing in the language and legislative history of the Federal Communications Act or the Public Broadcasting Act of 1967 authorizes the FCC to enforce that mandate against the CPB.

Section 398 of the Communications Act expresses the clear intent of Congress that there shall be no direct jurisdiction of the FCC over the Corporation. That section states that nothing in the 1962 or 1967 Acts "shall be deemed (1) to amend any other provision of, or requirement under this Act; or (2) to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision or control over educational television or radio broadcasting, or over the Corporation or any of its grantees or contractors . . . ." Since the FCC is obviously an "agency . . . of the United States" and since any enforcement of § 396(g)(1)(A) would necessarily entail "supervision" of the Corporation, the plain words of subsection (2) preclude FCC jurisdiction. We decline to rely entirely on the literal meaning of § 398, however. Section 399 of the 1967 Act, as amended in 1973,15 is contrary to the § 398 prohibition in that it mandates " supervision" of noncommercial licenses and contemplates FCC enforcement.16 The conflict between § 398 and § 399 creates at least an ambiguity which casts a cloud on the literal meaning of § 398. To resolve any doubts created thereby, we look to the legislative history of the 1967 Act for extrinsic evidence of its meaning.17

Congress desired to establish a program funding agency which would be free from governmental influence or control in its operations. Yet, the lawmakers feared that such complete autonomy might lead to biases and abuses of its own. The unique position of the Corporation is the synthesis of these competing influences. Reference to the legislative history of the 1967 Act shows a deep concern that governmental regulation or control over the Corporation might turn the CPB into a Government spokesman. Congress thus sought to insulate CPB by removing its "programming activity from governmental supervision."18 Representative of this intent is the following statement from the Report of the House Committee on Interstate and Foreign Commerce:19

How can the Federal Government provide a source of funds to pay part of the cost of educational broadcasting and not control the final product? That question is answered in the bill by the creation of a nonprofit educational broadcasting corporation.

Every witness who discussed the operation of the Corporation agreed that funds for programs should not be provided directly by the Federal Government. It was generally agreed that a nonprofit Corporation, directed by a Board of Directors, none of whom will be Government employees, will provide the most effective insulation from Government control or influence over the expenditure of funds.

In addition to this legislative history and the aforementioned prohibition contained in § 398, we note that any FCC jurisdiction over the CPB would constitute a radical extension of the FCC's basic jurisdictional grant. The jurisdictional provisions of the Communications Act limit FCC regulation to "interstate and foreign communication by wire or radio." The Corporation for Public Broadcasting is expressly forbidden to engage in such activities.20 While the Supreme Court has described the jurisdictional powers of the FCC as "not niggardly, but expansive,"21 there are limits to those powers. No case has ever permitted, and the Commission has never, to our knowledge, asserted jurisdiction over an entity not engaged in "communication by wire or radio."

Petitioner's reliance upon FCC jurisdiction over cable television franchises to support its jurisdictional claim is misplaced. Jurisdiction over CATV was expressly predicated upon a finding that the transmission of video and aural signals via the cable was "interstate . . . communication by wire or radio."22 Further, assertions of "jurisdiction" over networks23 are really no more than claims of expansive authority over the owned or affiliated individual licensees. In no case has the FCC taken direct jurisdiction over a network; in any event, CPB cannot be considered a network. In view of these prevailing limits, we will not presume that Congress meant by § 396(g)(1)(A) to radically alter the jurisdictional base of the FCC absent a clear statement to that effect.24

AIM maintains that this view of FCC jurisdiction to enforce § 396(g)(1)(A) renders the Section nugatory and hence ignores the Congressional sentiment that biases and abuses within the public broadcasting system should be controlled.25 We do not view our holding on the FCC's jurisdiction as having that effect. Rather, we take notice of the carefully balanced framework designed by Congress for the control of CPB activities.

The Corporation was established as nonprofit and non-political in nature26 and is prohibited from owning or operating "any television or radio broadcast station, system or network, community antenna system, or interconnection, or production facility."27 Numerous statutory safeguards were created to insure against partisan abuses.28 Ultimately, Congress may show its disapproval of any activity of the Corporation through the appropriation process.29 This supervision of CPB through its funding is buttressed by an annual reporting requirement.30 Through these statutory requirements and control over the "purse- strings," Congress reserved for itself the oversight responsibility for the Corporation.31

A further element of this carefully balanced framework of regulation is the accountability of the local noncommercial licensees under established FCC practice, including the Fairness Doctrine in particular. This existing system of accountability was clearly recognized in the 1967 legislative debates as a crucial check on the power of the CPB. Congressman Staggers, chairman of the House committee which considered the Public Broadcasting Act and floor manager of the Act, described the role of local responsibility:32

At all times the local stations have the right to accept or reject any program. The Corporation cannot require that a station broadcast any program. As required under present law, and as will be required under the new law, the sole responsibility for what goes out over the air rests upon the individual station licensee. This bill, I repeat, Does not impair or affect the existing statutory duty and responsibility of the station licensee.

We find nothing in § 398 which limits established FCC authority, including the Fairness Doctrine, over local noncommercial licensees.33 The § 398 prohibition against governmental interference is expressly limited to authorizations "contained in (this part)" of the Communications Act. The Fairness Doctrine and other public interest responsibilities are contained in provisions outside of the Public Broadcasting Act (§§ 390-99).34 Additionally, subsection (1) of § 398 clearly stated that nothing in these sections of the 1967 Act shall be deemed to amend "any other provision . . . or requirement under this chapter." We thus conclude that the Commission correctly held that it may enforce the Fairness Doctrine against noncommercial licensees.

The framework of regulation of the Corporation for Public Broadcasting we have described maximum freedom from interference with programming35 coupled with existing public accountability requirements is sensitive to the delicate constitutional balance between the First Amendment rights of the broadcast journalist and the concerns of the viewing public struck in Columbia Broadcasting System, Inc. v. Democratic National Committee,412 U.S. 94, 93 S. Ct. 2080, 36 L. Ed. 2d 772 (1973). There the Supreme Court warned that "only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters"36 will governmental interference with broadcast journalism be allowed. The Court on the basis of this rule rejected a right of access to broadcast air time greater than that mandated by the Fairness Doctrine as constituting too great a "risk of an enlargement of Government control over the content of broadcast discussion of public issues."37

It is certainly arguable that FCC application of the standard whatever that standard may be of § 396(g)(1)(A) could "risk (an) enlargement of Government control over the content of broadcast discussion of public issues" in the following two ways:38 whereas the existing Fairness Doctrine requires only that the presentation of a controversial issue of public importance be balanced in Overall programming, § 396(g)(1)(A) might be argued to require balance of controversial issues within each individual program. Administration of such a standard would certainly require a more active role by the FCC in oversight of programming. Furthermore, whereas the FCC has at present carefully avoided anything but the most limited inquiry into the fac- tual accuracy of programming,39 § 396(g)(1)(A) by use of the term "objective" could be read to expand that inquiry and thereby expand FCC oversight of programming. Both of these potential enlargements of government control of programming, whether directed against the CPB, PBS or individual noncommercial licensees,40 threaten to upset the constitutional balance struck in CBS. We will not presume that Congress meant to thrust upon us the substantial constitutional questions such a result would raise.41 We thus construe § 396(g)(1)(A) and the scheme of regulation for public broadcasting as a whole to avoid such questions.

Our view of § 396(g)(1)(A), as colored by the constitutional misgivings just expressed, does not presume the Section to be superfluous. Rather we view the provision as a guide to Congressional oversight policy and as a set of goals to which the Directors of CPB should aspire.42 The provision is not a substantive standard, legally enforceable by agency or courts. The language of the Section comports with this view:

the Corporation Is authorized to (A) Facilitate the full development of educational broadcasting in which programs of High quality, obtained from diverse sources, Will be made available . . . with strict adherence to objectivity and balance . . . (emphasis added).

The Corporation is not required to provide programs with "strict adherence to objectivity and balance" but rather to "facilitate the full development of educational broadcasting in which programs . . . will be made available . . . ." We leave the interpretation of this hortatory language to the Directors of the Corporation and to Congress in its supervisory capacity. We hold today only that the FCC has no function in this scheme of accountability established by § 396(g)(1)(A) and the 1967 Act in general other than that assigned to it by the Fairness Doctrine. Therefore, we deny the petition for review and affirm the Commission's decision rejecting jurisdiction over the Corporation for Public Broadcasting.

So Ordered.