Opinion for the court filed by Circuit Judge TAMM with whom Circuit Judge WILKEY concurs.
Dissenting opinion filed by Circuit Judge WRIGHT.
TAMM, Circuit Judge:
I. INTRODUCTION AND BACKGROUND
This case concerns perhaps the most important interpretation of the equal time provision of the Communications Act of 1934, 47 U.S.C. § 315(a), which has arisen in the past decade. Petitioners, the Democratic National Committee ("DNC"), the National Organization for Women ("NOW"), and Representative Shirley Chisholm, ask us to review various aspects of a Memorandum Opinion and Order of the Federal Communications Commission (hereinafter "FCC" or "Commission") reversing a statutory interpretation of over ten years' duration and holding that, henceforth, debates between qualified political candidates initiated by nonbroadcast entities (non-studio debates) and candidates' press conferences will be exempt from the equal time requirements of Section 315, provided they are covered live, based upon the good faith determination of licensees that they are "bona fide news events" worthy of presentation, and provided further that there is no evidence of broadcaster favoritism. Our review of the legislative history surrounding passage of the "bona fide news event" exemption reveals that it is inconclusive as to whether Congress intended for these particular formats to be included, although we find substantial support for the Commission's new interpretation in the broad Congressional policies behind passage of the exemption — increasing broadcaster discretion and encouraging greater coverage of political news — and in the discretion granted the Commission in interpreting and applying the amendment to particular program formats. We therefore defer to the Commission's interpretation of the Act it is charged with administering. We also conclude that the Commission has properly exercised its discretion in accomplishing the reversal via declaratory order rather than through notice and comment rulemaking.
A. General Factual and Legislative Background
Section 315, as originally enacted and interpreted, had imposed upon broadcasters a duty of absolute equality of treatment of competing political candidates in the "use" of broadcast facilities, stating:
(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate.
47 U.S.C. § 315(a).
For a number of years the FCC interpreted the equal time provision as inapplicable to the appearance of a candidate on a newscast, reasoning that such an appearance did not constitute a "use" of the broadcast fa cility insofar as the candidate did not directly or indirectly initiate the filming or presentation of the event. See, e. g., Allen H. Blondy, 40 FCC 284, 14 P & F Radio Reg. 1199 (1957). This interpretation became embodied in the Commission's official release of October 6, 1958, entitled "Use of Broadcast Facilities by Candidates for Public Office." Public Notice FCC 58-936, HI-12; 105 Cong.Rec. 14459 (1959).
In 1959, however, the Commission effected a radical departure from its prior interpretation in the so-called "Lar Daly" case, Columbia Broadcasting System (Lar Daly), 18 P & F Radio Reg. 238, reconsideration denied, 26 FCC 715, 18 P & F Radio Reg. 701 (1959), and interpreted the statute to mean that the equal time rule applied even to the appearance of a candidate on a regularly scheduled newscast. The Commission's position on this matter created a national furor, and it was feared that its strict application of the equal opportunities provision "would tend to dry up meaningful radio and television coverage of political campaigns." S.Rep. No. 562, 86th Cong., 1st Sess. 10 (1959), U.S.Code Cong. & Admin. News 1959, pp. 2564, 2572. This concern led Congress to conclude that the concept of absolute equality among competing political candidates would have to give way, to some extent, to two other "worthy and desirable" objectives:
First, the right of the public to be informed through broadcasts of the political events; and Second, the discretion of the broadcaster to be selective with respect to the broadcasting of such events.
Hearings on Political Broadcasts — Equal Time Before the Subcommittee on Gommunications and Power of the House Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. 2 (1959) (comment of Chairman Harris).
Pursuant to these objectives, Congress amended Section 315(a) on September 4, 1959, to add the following exemptions:
Appearance by a legally qualified candidate on any—
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (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),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection. 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.
P.L. 86-274, § 1, 73 Stat. 557, amending 47 U.S.C. § 315.
Thus armed with a not-so-clear Congressional directive generally exempting news broadcasting from Section 315's equal time requirements, the Commission set forth to apply the news coverage exemptions to specific kinds of events and coverage. In The Goodwill Stations, Inc. (WJR), 40 FCC 362, 24 P & F Radio Reg. 413 (1962), the Commission ruled that a radio broadcast of a debate sponsored by the Detroit Economic Club between the two major Michigan gubernatorial candidates, part of a regular series of broadcasts of Economic Club luncheons, failed to qualify for exemption under Section 315(a)(4) as "on-the-spot coverage of bona fide news events . . . Ten days later, the Commission held in National Broadcasting Co. (Wyckoff), 40 FCC 370, 24 P & F Radio Reg. 401 (1962), that a debate at the annual UPI convention featuring the two major California gubernatorial candidates could not qualify under the bona fide news event exemption. These two decisions, read together, effectively excluded all debates from the Section 315(a)(4) exemption. Two years later, the Commission ruled in response to a network's request that the broadcast of a press conference held by an incumbent President who is a candidate for reelection, or by a non-incumbent candidate for President, is a non-exempt "use" of the broadcast facility within the meaning of Section 315. Columbia Broadcasting System, Inc., 40 FCC 395, 3 P & F Radio Reg. 2d 623 (1964). The Commission's 1975 Opinion overrules these decisions concluding, inter alia, that they were based on an erroneous reading of the legislative history of Section 315(a)(4).
B. Description of Parties and Immediate Background
The Commission's 1975 Opinion was in response to petitions filed by the Aspen Institute Program on Communications and Society ("Aspen") and CBS, Inc. ("CBS"). The Aspen petition, filed on April 22, 1975, asked the Commission to reexamine its 1962 Goodwill and Wyckoff decisions, holding that debates between candidates could not qualify as "on-the-spot coverage of bona fide news events" under the Section 315(a)(4) exemption. Aspen Institute Program on Communications and Society Petition for Revision of First Report/Fairness Report in Docket No. 19260 or for Issuance of Policy Statement or Declaratory Ruling, April 22, 1975. J.A. 1. Aspen argued that these 1962 rulings were based on the mistaken assumption that Congress intended Section 315(a)(4) to apply only to newscasts in which the candidates' appearance was "incidental to" an independent newsworthy event, and urged the Commission to adopt an interpretation of the exemption consistent with the Congressional purpose to encourage and increase news coverage of political events. Such a broad, remedial construction, Aspen urged, would enable broadcasters to "more effectively and fully . . inform the American people of important political races and issues" and to "make the Bicentennial a model political broadcast year." Opinion at 1; J.A. 1-3.
The CBS petition, filed on July 16, 1975, requested a ruling that Presidential press conferences could likewise qualify under the Section 315(a)(4) exemption from the equal opportunities requirements, so that broadcasters who covered such press conferences in the exercise of their professional news judgment would not incur equal opportunities obligations. Columbia Broadcasting System, Inc., Petition for Declaratory Ruling, July 16, 1975; J.A. 22. CBS pointed out that President Ford had formally announced his candidacy for the Republican nomination for President on July 8, 1975, more than 15 months before the election. All broadcast appearances by the President thus potentially could give rise to equal opportunity demands by other candidates for the Republican nomination unless such appearances fell within the exemptions to Section 315. Broadcast coverage of Presidential press conferences under these circumstances would not be feasible throughout the entire period between the President's announcement and the 1976 election. CBS requested that the Commission reexamine its 1964 ruling and interpret Section 315 as exempting live broadcast coverage of Presidential press conferences from the equal opportunities requirements where broadcasters in the exercise of their good faith news judgments decide that a conference is newsworthy. CBS Brief at 4-5. CBS argued that this interpretation was consistent with "the broad intent of Congress in enacting the 1959 amendments to Section 315 to ensure the free flow of vital news to the public and provide 'latitude for the exercise of good faith news judgment on the part of broadcasters and networks.' " CBS Brief at 5, quoting 105 Cong.Rec. 17782 (1959) (remarks of Rep. Harris). See also CBS petition at 12; J.A. 33. To adhere to the earlier rulings, CBS contended, would inhibit the free flow of news from the President to the people.
On September 2, 1975, the Democratic National Committee filed comments on the CBS petition, opposing reconsideration of the Commission's 1964 ruling that Presidential press conferences were not exempt from the equal opportunities requirements of Section 315. J.A. 45. Shortly thereafter, on September 12, 1975, the Honorable Shirley Chisholm and the National Organization for Women filed comments opposing both the CBS and Aspen Petitions. J.A. 70, 127.
The Commission's Opinion, released on September 30, 1975, acting on the CBS and Aspen petitions, overruled its 1964 CBS decision that Presidential press conferences could not qualify for exemption under Section 315(a)(4) and further held that press conferences of other candidates for political office broadcast "live and in their entirety" could also qualify for the "on-the-spot coverage of bona fide news events" exemption. The Commission also overruled its Goodwill and Wyckoff decisions, supra, and held that Section 315(a)(4) exempts from the equal opportunity requirement candidate debates sponsored by non-broadcast entities, i. e., non-studio debates.
The basis for the Commission's reversal was its decision that the earlier cases had been based on a faulty reading of the legislative history surrounding the 1959 amendment. With respect to the debates concerned in the Goodwill and Wyckoff decisions, the Commission in 1962 had rejected the contention that, for the purposes of Section 315(a)(4), it was sufficient that a licensee had exercised its good faith news judgment in concluding that a particular debate constituted a bona fide news event which it wished to cover live and determined instead that debates could qualify neither as "bona fide news interviews" (because the candidates, not the broadcaster, controlled the format and participants), nor as "bona fide news events" (because the appearance of the candidates was not "incidental to" some other news event — it was the event). In support of this "incidental to" test, the Commission had relied in 1962 on a 1959 House Committee Report stating that "the principal test was 'whether the appearance . is incidental to the on-the-spot coverage of a news event or whether it is for the purpose of advancing the candidacy of a candidate.' " 40 FCC 364, 372-73, quoted in FCC Brief at 5. A second rationale advanced by the Commission was its fear that interpreting a debate to constitute a "bona fide news event" would effectively nullify the equal time ob jectives of Section 315 and deprive the other three exemptions of their meaning.
The Commission's rationale for the 1964 CBS decision was essentially the same with respect to the Section 315(a)(4) exemption as its rationale for the earlier debate decisions: the appearance of the candidate was not incidental to some other independently newsworthy event. In addition, the Commission rejected the argument that the broadcaster's good faith judgment of the newsworthiness of an event was sufficient to qualify coverage of the event for the Section 315(a)(4) exemption. 55 FCC 2d at 701, para. 13; J.A. 146.
In its 1975 Opinion, the Commission concluded that the analysis upon which it had based its decisions in these three cases had been erroneous. The Commission now concluded that the "incidental to" test had been removed from the proposed legislation prior to its enactment in 1959. Id. at 703, para. 22; J.A. 150. The "incidental to" requirement was, in fact, stricken in conference in the face of opposition during the floor debate in the House, and the conference bill was adopted without the disputed language. Under the new test, the Commission no longer seeks to determine whether the appearance of the candidate in a debate is the central aspect of the presentation or is merely incidental to some other independently newsworthy event, and
. a program which might otherwise be exempt does not lose its exempt status because the appearance of a candidate is a central aspect of the presentation, and not incidental to another news event.
Id. at 704-05, para. 23; J.A. 153. The new test, in the Commission's words, "[Ajllows reasonable latitude for exercise of good faith news judgments by broadcasters and networks by leaving the initial determination as to eligibility for section 315 exemption to their reasonable and good faith judgment." Id. at 708, para. 30; J.A. 157. The Commission further found that reversal of its prior decisions "comports with the original legislative intent and serves the public interest by allowing broadcasters to make a fuller and more effective contribution to an informed electorate." Id. at 706, para. 27; J.A. 154.
On September 26, 1975, Representative Chisholm and NOW filed their petition for review in this court. Shortly thereafter, all three major networks intervened. DNC filed its petition for review on October 8, 1975, and the two cases were consolidated. Jurisdiction is properly invoked under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342.
II. LEGISLATIVE HISTORY OF THE NEWS COVERAGE EXEMPTIONS
Our starting point in determining the scope and meaning of Section 315(a)(4) is, of course, the intent of Congress. For this we look both to the statutory language itself and to the legislative history. In the words of Justice Frankfurter,
[a] statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed withput being mutilated. Especially is that true where the statute . is part of a legislative process having a history and a purpose.
United States v. Monia, 317 U.S. 424, 432, 63 S.Ct. 409, 413, 87 L.Ed. 376, 382 (1943) (Frankfurter, J., dissenting).
We note initially that the four exemptions apply generally to news broadcasts and that subsection (4), with which we are directly concerned, is limited to "on-the-spot [live] coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto) . . ." 47 U.S.C. § 315(a)(4) (1959) (emphasis added). All of the exemptions, in fact, contain the requirement that the program or event be "bona fide" news, yet the language itself provides no ready clue as to how this requirement is to be satisfied. It is unclear from the statute whether the test refers to the character of the event (/. e., its inherent newsworthiness), the nature of the candidate's appearance (i. e., whether the format is that of a debate, press conference, speech, etc.), or the candidate's relation to the broadcast (i. e., whether he "controls" it). Moreover, the exemption provisions do not reveal who is to make this crucial determination, the broadcaster or the Commission. The only clue from the language of Section 315(a)(4) is the parenthetical phrase which states that political conventions and activities incidental thereto — presumably nominating and acceptance speeches — definitely constitute "bona fide news events," and that the scope of the exemption extends to some other news events by some standard not apparent from the statutory language.
A. Legislative History Prior to the Passage of the News Exemptions
Central to the Commission's reversal of its Goodwill, Wyckoff and Columbia Broadcasting System decisions was its determination that those decisions were based upon an erroneous reading of the legislative history surrounding passage of the 1959 amendment to Section 315. Our examination reveals that the legislative history preceding passage of the amendment is inconclusive on the issue of whether Congress intended specifically to include or exclude non-studio debates and candidate's press conferences. It is clear, however, that Congress intended to give the Commission some leeway in interpreting the four exemptions and in applying them to particular program formats in order to further the basic purpose of the amendment, "[To] enable what probably has become the most important medium of political information to give the news concerning political races to the greatest possible number of citizens, and to make it possible to cover the political news to the fullest degree." That the Commission has considerable discretion in this area is clear from the Senate Report, which states in part:
[T]he committee in adopting the language of the proposed legislation carefully gave the Federal Communications Commission full flexibility and complete discretion to examine the facts in each complaint which may be filed with the Commission. In this way the Commission will be able to determine on the facts submitted in each case whether a newscast, news interview, news documentary, on-the-spot coverage of news event, or panel discussion is bona fide or a "use" of the facilities requiring equal opportunity.
The Congress created the Federal Communications Commission as an expert agency to administer the Communications Act of 1934. As experts in the field of radio and television, the Commission has gained a workable knowledge of the type of programs offered by the broadcasters in the field of news, and related fields. Based on this knowledge and other information that it is in a position to develop, the Commission can set down some definite guidelines through rules and regulations and wherever possible by interpretations.
S.Rep. No. 562, 86th Cong., 1st Sess. 12 (1959), U.S.Code Cong. & Admin.News 1959, p. 2574 (emphasis added).
That Congress intended the Commission to play an important role in developing the Section 315 exemptions is also evident from Congress' decision not to legislate in detail, but rather to set out broad categories for exemption of news-related coverage and leave the Commission with the task of implementing Congressional intent. See 105 Cong.Rec. 16227 (1959) (remarks of Rep. Celler); 105 Cong.Rec. 14455 (1959) (remarks of Sen. Pastore). Moreover, the equal time provision itself contains a provision, Section 315(d), granting the Commission authority to prescribe appropriate rules and regulations to carry out the provisions of Section 315. This is something more than the normal grant of authority permitting an agency to make ordinary rules and regulations, since the Commission already has such authority to "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter." 47 U.S.C. § 303(r) (1937). See Kay v. FCC, 143 U.S.App.D.C. 223, 443 F.2d 638, 643 (1970).
Although we believe it unnecessary here to retrace in detail the legislative history preceding passage of the 1959 amendment, we note that it provides substantial support, although inconclusive, for the Commission's interpretation. Under these circumstances, we believe it our duty to defer to the Commission's interpretation of the statute which it is charged with administering. This court has often reiterated the principle that
[i]n approaching the problem of statutory interpretation . we show "great deference to the interpretation given the statute by the officers or agency charged with its administration. 'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.' "
Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 359 F.2d 282, 283-84 (1966) (citation omitted). Such deference is especially appropriate where, as here, Congress has opted for legislative generality, leaving the agency with the task of evolving definitions on a case-by-case basis. See, e. g., Hearings on S. 1585, S. 1604, S. 1858 and S. 1929 Before the Communications Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. 96 (1959) (Statement of Comm'r Doerfer).
We also find petitioners' argument that the four exemptions were intended to be narrowly construed unsupported by the legislative history. Rather, we find more convincing the Commission's, and Aspen's, contention that the purpose of the 1959 amendment was broadly remedial, and evidenced a willingness by Congress to take some risks with the equal time philosophy in order to permit broadcast coverage of on-the-spot news and to enable broadcasters more fully to cover the political news. Admittedly, Congress intended that the 1959 amendments would preserve the basic philosophy behind the equal time requirement. At the same time, however, Congress was determined to increase broadcaster discretion and allow increased live broadcast coverage of political news. This was the tone set for the opening of the hearings on the proposed 1959 amendments by Representative Harris, the Chairjnan of the House Subcommittee on Communications and Power, when he stated:
This section [§ 315] by providing absolute equality among competing political candidates comes into conflict with two other worthy and desirable objectives:
First, the right of the public to be informed through broadcasts of political events; and
Second, the discretion of the broadcaster to be selective with respect to the broadcasting of such events.
Thus the principle of absolute equality for competing political candidates requires modification in the light of these two additional considerations and that is the specific problem which the Congress must face — just how far the equality principle should give way to these other two principles. This question is to be developed in the course of these hearings.
Hearings on H.R. 5389, H.R. 5678, H.R. 6326, H.R. 7123, H.R. 7180, H.R. 7206, H.R. 7602, H.R. 7985 Before the Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. at 1-2 (1959) (Statement of Hon. Oren Harris, Chairman).
Nothing in the language of Section 315(a)(4) itself would indicate that debates or press conferences could not be considered "news events" worthy of coverage. On the contrary, the inherent newsworthiness of speeches and debates seems no greater or less than that of "political conventions and activities incidental thereto," events expressly within the scope of the exemption. It is indisputable that print media consider such events newsworthy. We remain un convinced by petitioners' arguments that these events are distinguishable based on the degree of control by the candidate, or the degree to which candidates tailor such events to serve their own political advantages. It is more reasonable to believe, as the Commission apparently does, that any appearance by a candidate on the broadcast media is designed, to the best of the candidate's ability, to serve his own political ends. There is ample support in the legislative history for the Commission's conclusion that a candidate's partial control over a press conference or debate does not, by itself, exclude coverage of the event from Section 315(a)(4). This conclusion is consistent with the Commission's new position that, absent evidence of broadcaster intent to advance a particular candidacy, the judgment of the newsworthiness of an event is left to the reasonable news judgment of professionals. See, e. g., National Broadcasting Company, 25 FCC 2d 735, 20 P & F Radio Reg.2d 301, 303 (1970); In re Complaint Covering CBS Program, "Hunger in America," 20 FCC 2d 143, 17 P & F Radio Reg.2d 674, 683 (1969); Thomas R. Fadell, 40 FCC 380, 381-382, 25 P & F Radio Reg. 288, aff'd per curiam sub nom., Fadell v. FCC, 25 P & F Radio Reg. 2063 (7th Cir.1963).
Concurrently with the omission of the "incidental to" requirement from Section 315(a)(4) Congress increased the scope of broadcaster discretion to determine whether a news event was "bona fide" and deserving of coverage. In the words of Chairman Harris,
Under the substitute agreed to in conference, the appearance of a candidate on a newscast or news interview will not be exempt from the equal time requirement unless the newscast or news interview is bona fide, and appearance of a candidate in on-the-spot coverage of news events is not to be exempt from the equal time requirements unless the program covers bona fide news events. This requirement regarding the bona fide nature of the newscast, news interview or news events was not included without careful thought by the conference committee. It sets up a test which appropriately leaves reasonable latitude for the exercise of good faith news judgment on the part of broadcasters and networks. .
105 Cong.Rec. at 17782 (1959) (emphasis added).
It is thus inescapable that the final bill provided more room for broadcaster discretion than the earlier version, which had retained the "incidental to" language. Whether broadcaster discretion was intended to be the sole criterion of the bona fide nature of a news event, absent a violation of the fairness obligation, is less certain, however, and we are unable to reach a definite conclusion from the legislative history. We note only that the thrust of the 1959 amendment was toward increasing broadcaster discretion to cover political news. We find the Commission's Opinion entirely consistent with this theme.
Based thus on the broad intent of Congress to maximize broadcast coverage of political events and to increase broadcaster discretion, as well as Congress' expressed willingness to take some risks with the equal time philosophy in order to achieve these goals and to grant the Commission some leeway in interpreting the exemptions, we conclude that the Commission's recent Opinion appears consistent with the general Congressional purpose expressed in the legislative history preceding the 1959 amendment.
B. Congressional Action and Inaction Subsequent to Passage of the 1959 Amendment
Petitioners argue that Congressional action after 1959 was consistent with their interpretation that Section 315(a)(4) was never intended to apply to debates or press conferences and, alternatively, that Congress ratified the Commission's original interpretation of the bona fide news event exemption and subsequently "reenacted" section 315 without modifying the news exemptions.
We turn first to petitioners' contention that the 1960 suspension of the equal time requirement in order to permit the so-called "Great Debates" between Democrat John F. Kennedy and Republican Richard M. Nixon evidenced a legislative recognition that debates were not exempt under the 1959 amendment. Brief for petitioners Chisholm and NOW at 40. We find no such indication. Senate Joint Resolution 207 suspended Section 315 in its entirety as it applied to all Presidential and Vice-presidential candidates; it never addressed the coverage of the 1959 amendments and placed no limits whatsoever on the kinds of events covered by broadcasters. Such political programming took a variety of different forms, including some clearly not otherwise exempt from the equal time requirements. See Hearings Before the Communications Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 87th Cong., 1st Sess. 66 (1961). In fact, the Senate Report accompanying the Joint Resolution stated that one reason for the suspension was that the Commission had not yet had sufficient time to interpret the new exemptions; consequently, the across-the-board suspension was designed, at least in part, to provide time for necessary evaluation of the effects of the amend- merits. S.Rep. No. 1539,86th Cong., 2d Sess. 2 (1960) (statement of Sen. Pastore). Given the scope of the Section 315(a) exemptions, especially their applicability to broadcast coverage of all 1960 election contests except the Presidential race and to all future contests as well, we must conclude that the 1960 suspension of Section 315 is more properly viewed as an isolated experiment in total repeal of the equal time requirements for Presidential and Vice-presidential candidates, and not as a recognition or limitation of the scope of the news coverage exemptions.
Petitioners next argue that Congressional acquiescence in and affirmance of the Commission's prior interpretation of the "bona fide news event" exemption over a period of more than ten years demonstrates that the Commission's former interpretation was the correct one and, consequently, that the Wyckoff, Goodwill and Columbia Broadcast System decisions have taken on the force of law. Specifically, petitioners urge that Congress was aware of the Commission's interpretation and did not indicate disapproval. DNC Brief at 44-47. Petitioners then argue that this inaction ratified the Commission's 1962 decisions by acquiescence and, further, that the Federal Election Campaign Act of 1971 "reenacted" Section 315, thereby incorporating the Commission's interpretation into the Act such that it could be altered only by Congress. Brief for petitioners Chisholm and NOW at 65-66; DNC Brief at 44-51.
We begin by noting that attributing legal significance to Congressional inaction is a dangerous business. See, e. g., Power Reactor Development Co. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 367 U.S. 396, 408-10, 81 S.Ct. 1529, 1535-36, 6 L.Ed.2d 924, 932-33 (1961). The Supreme Court has said that Congressional failure to repudiate particular decisions "frequently betokens unawareness, preoccupation, or paralysis" rather than conscious choice, Zuber v. Allen, 396 U.S. 168, 185-86 n.21, 90 S.Ct. 314, 324, 24 L.Ed.2d 345, 356 (1969), and "affords the most dubious foundation for drawing positive inferences," United States v. Price, 361 U.S. 304, 310-11, 80 S.Ct. 326, 330, 4 L.Ed.2d 334, 339 (1960) (Harlan, J.). See also Jones v. Liberty Glass Co., 332 U.S. 524, 533, 68 S.Ct. 229, 231, 92 L.Ed. 142, 149 (1947) ("The doctrine of legislative acquiescence is at best only an auxiliary tool for use in interpreting ambiguous statutory provisions"). On the other hand, the Court has recently stated that
[a] court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has reenacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress.
NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134, 143 (1974) (citations omitted).
Petitioners argue that Congress acquiesced in the FCC's prior interpretation both actively and passively; "passively by not enacting legislation to correct it, and actively by, in effect, reenacting § 315 in 1972 by amendments in important particu lars, without in any way changing the language of the statute here pertinent." DNC Brief at 19. The Commission's interpretation of the 1959 amendments, petitioners assert, "was well known and clearly understood by Congress in the ensuing decade." DNC Brief at 44.
Our examination of Congressional action subsequent to the enactment of the equal time exemptions reveals nothing that can be interpreted as active approval of the Commission's 1962 interpretation. Subsequent hearings concentrated more generally on proposals to abolish the equal time requirement altogether or to amend the law to permit studio debates or speeches, both non-exempt uses under either of the Commission's interpretations. Petitioners rely upon the fact that the Commission's decisions were reported to Congress and discussed, for example, in the Commission's Annual Reports to Congress and Equal Time Primer. DNC Brief at 44-46. Although this indicates that Congress was "aware" of the Commission's interpretation, at least in a technical sense, Congressional inaction in this instance is entirely consistent with the interpretation that Congress was willing to leave to the Commission the interpretation of the exemptions as they applied to specific program formats. In this sense, Congressional acquiescence in the Commission's interpretation does not indicate that it was the only, or the best, interpretation. The circumstances surrounding the reports themselves indicate that Congress had in no way adopted the Commission's interpretation as its own. For example, in the 1963 Hearings before the House Commerce Committee, FCC Chairman Minow cited the Brown-Nixon debate as an example of a close case in applying the Section 315(a)(4) exemptions and informed the Committee that the Commission had ruled that the debate did not qualify as a bona fide news event. In response, Chairman Harris strongly indicated his disagreement with the Commission's narrow interpretation of the "bona fide news event" exemption, stating:
Is not the bringing together of two major political candidates . a bona fide news event? Perhaps, I do not appreciate the definition of a bona fide news event. . Are we going to deprive the people under this strict interpretation which you suggest here, of the broadcastings of this event?
Political Broadcasts — Equal Time Hearing Before the House Commerce Committee, 88th Cong., 1st Sess., 65-67 (1963), quoted in FCC Brief at 37. Certainly this statement is less consistent with ratification of the Commission's interpretation than with a willingness to allow the Commission some leeway in interpretation and application of the exemption to specific news-related formats. In short, under these circumstances, we believe that Congress' failure to overrule the Wyckoff, Goodwill and 1964 Columbia Broadcasting System decisions sheds little light on Congress' intent, other than to demonstrate adherence to the basic philosophy of the equal time requirement, since such inaction must be viewed against the background of Congress' decision to leave the Commission some discretion to decide which particular events should qualify for the broadly defined news coverage exemptions.
Petitioners further contend that the Federal Election Campaign Act ("FECA"), 86 Stat. 3 et seq., reenacted Section 315, thereby positively approving the prior administrative construction. DNC Brief at 44-52; Brief for Chisholm and NOW at 65-67. We find this argument wholly unpersuasive. Although Congress did amend the Act in 1971 to include provisions relating to the cost of political advertising, 86 Stat. 4, 47 U.S.C. § 312(a)(7), the nature of the "reenactment" was extremely limited and concerned solely with reforming political campaign finance activities. The FECA amendments were in no way concerned with the equal time exemptions, and, in fact, by-passed Section 315(a) altogether. The doctrine of reenactment simply cannot be stretched this far. See generally Suth erland on Statutory Construction, § 22.08, 22.33 (1973).
The cases upon which petitioners rely for this contention are likewise distinguishable: all involved more specific reenactments or viewed Congressional acquiescence as but one of many factors in interpreting ambiguous statutory language. For example, in Helvering v. Reynolds Tobacco Co., 306 U.S. 110, 59 S.Ct. 423, 83 L.Ed. 536 (1939), a case cited by petitioner DNC as "precisely dis-positive," the Supreme Court held that the reenactment of the Revenue Acts without alteration indicated Congressional approval of the administrative construction of the Treasury Department; hence, the construction had attained the force of law. 306 U.S. at 114-15, 59 S.Ct. at 425, 83 L.Ed. at 540, cited in DNC Brief at 48. In that case, however, the specific statutory provision had been fully restated and repeatedly reenacted without change in each successive Revenue Act. Id. at 115 n. 10, 59 S.Ct. at 425, 83 L.Ed. at 540. Moreover, the Supreme Court has recognized the unique character of Internal Revenue Code cases due to the practice of Congressional amendment and reenactment. See Zuber v. Allen, supra, 396 U.S. at 185 n. 21, 90 S.Ct. at 323, 24 L.Ed.2d at 355. Similarly, in United States v. Leslie Salt Co., 350 U.S. 383, 76 S.Ct. 416, 100 L.Ed. 441 (1956), the Supreme Court refused to allow a new administrative definition of "debenture" to include certain promissory notes in the face of a consistent definition of 23-years duration. There, however, the Court based its decision largely on express Congressional approval of the old definition, since Congress had incorporated a similar definition into the statute by amendment, id. at 390-91, 76 S.Ct. at 420-21, 100 L.Ed. at 448, and since debentures and promissory notes had been taxed under separate provisions until the tax on promissory notes was -repealed. Id. at 388-91, 76 S.Ct. at 419-21, 100 L.Ed. at 447-48. Finally, in Kay v. FCC, 143 U.S.App.D.C. 223, 443 F.2d 638 (1970), a panel of this court upheld the Commission's interpretation of Section 315 to apply separately to primary and general elections, so that during a primary election a broadcast "use" by a candidate gives rise to equal opportunities obligations only with respect to other candidates for his party's nomination. In Kay, however, the fact that Congress had amended Section 315 in 1959 without changing the language relied upon by the Commission was considered merely "an added circumstance which has some persuasive weight." Id. at 646. The Kay court specifically stated that legislative silence in the face of administrative interpretation does not necessarily indicate legislative approval. Id.
We are thus unable to discover from the extensive, if rather ambiguous, legislative history any conclusive indication of a Congressional intent with respect to candidates' debates and press conferences. Congress' failure to take action in the face of the Commission's 1962 and 1964 decisions is subject to more than one interpretation. In the words of Judge Hand:
. [N]ot every ruling is incorporated in the text because it is not repudiated [by Congress]; no one has ever suggested anything of the sort. At most, administrative practice is a weight in the scale, to be considered, but not to be inevitably followed. . To suppose that Congress must particularly correct each mistaken construction under penalty of incorporating it into the fabric of the statute appears to us unwarranted . .
F. W. Woolworth Co. v. United States, 91 F.2d 973, 976 (2d Cir. 1937), quoted in FCC Brief at 42.
Moreover, petitioners' acquiescence and reenactment arguments must be viewed in the context of the ability of administrative agencies to overrule past decisions, particularly in light of the discretion traditionally afforded the Commission in interpreting and applying the equal time provision. Congress' failure to change the statute in the face of the Commission's interpretation is thus entirely consistent with a demonstrated willingness to allow the Commission some leeway in interpreting the news exemptions and in applying them to specific news-related events.
In these circumstances, we are in no position to say that the Commission has misinterpreted Congress' intent or usurped its authority. The Commission's Opinion is consistent with the broad Congressional purpose in enacting the 1959 exemptions— permitting increased broadcaster discretion and encouraging greater coverage of political news — and operates in an area where the Commission has been granted greater than normal discretion. We are therefore required to defer to the Commission's interpretation.
III. THE PROCEDURAL ISSUE: THE PROPRIETY OF OVERRULING A LONGSTANDING ADMINISTRATIVE DECISION VIA DECLARATORY ORDER RATHER THAN THROUGH RULEMAKING
Finally, petitioners Chisholm and NOW argue that, even if the Commission had authority to change its interpretation of Section 315(a)(4) to include non-studio debates and candidates' press conferences, it was required to follow rulemaking procedures, including issuing formal public notice of the CBS and Aspen proposals and inviting public comment in conformance with the Administrative Procedure Act, 5 U.S.C. § 553, 706 ("APA") and the Due Process Clause of the Constitution. This is so, petitioners argue, because the Commission's Opinion enunciates new standards for determining what constitutes "on-the-spot coverage of bona fide news events" which are of general prospective application. Brief for petitioners Chisholm and NOW at 3-4.
We note initially that an administrative agency is permitted to change its interpretation of a statute, especially where the prior interpretation is based on error, no matter how longstanding. See, e. g., Automobile Club v. Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). See also American Trucking v. AT&S F.R. Co., 387 U.S. 397, 416, 87 S.Ct. 1608, 1618, 18 L.Ed.2d 847, 860 (1967); NLRB v. A.P.W. Product Co., 316 F.2d 899 (2d Cir. 1963).
It is, of course, incumbent upon an agency reversing its own policy to provide "an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law." Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 454 F.2d 1018, 1026 (1971). The Opinion, grounded in the Commission's interpretation of the legislative history of the 1959 amendment and in the broad Congressional intent to provide for increased news coverage of political news, satisfies this minimal standard and is in no other respect "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . 5 U.S.C. § 706(2)(A).
Respecting petitioners' claim that the Commission acted improperly in reversing precedent which has been followed for more than a decade via adjudication, rather than through notice and comment rule-making, we must differ with petitioners' reading of NLRB v. Bell Aerospace, supra. In Bell Aerospace, the Supreme Court held that the issue of whether certain buyers were managerial personnel, and thus exempt from the coverage of the National Labor Relations Act, need not be decided by rulemaking. That case, like this one, in volved a ruling contrary to the agency's past decisions; yet, the Court held that the choice whether to proceed by rulemaking or adjudication is primarily one for the agency regardless of whether the decision may affect agency policy and have general prospective application. NLRB v. Bell Aerospace, supra, 416 U.S. at 291-95, 94 S.Ct. at 1770-72, 40 L.Ed.2d 134, 152-54. See also Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U.Pa.L.Rev. 485, 508-13 (1970). See generally K. Davis, Administrative Law Treatise § 501 (1958 ed.). Bell Aerospace relied heavily on SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (Chenery II), in which the Court had stated that "the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency." Id. at 203, 67 S.Ct. at 1580, 91 L.Ed. at 2002, quoted in NLRB v. Bell Aerospace, supra, 416 U.S. at 293, 94 S.Ct. at 1771, 40 L.Ed.2d at 153. Although the majority in Bell Aerospace indicated that there could be instances where reliance, on adjudication rather than rulemaking would amount to an abuse of discretion, id. at 294, 94 S.Ct. at 1771, 40 L.Ed.2d at 153, we find nothing to indicate that this is such a case. The original interpretation of the 1959 exemptions, which the 1975 Opinion reversed, was also established by adjudication; thus reversal by adjudication seems particularly appropriate here. Adjudicatory decisions do not harden into "rules" which cannot be altered or reversed except by rulemaking simply because they are longstanding.
Moreover, we see no advantage to be gained in this instance by requiring the Commission to proceed via the formalities of rulemaking rather than through adjudication. Petitioners DNC, Chisholm and NOW all submitted lengthy comments to the Commission in opposition to the Aspen and CBS petitions. As in Bell Aerospace, supra, we believe the issues were fully aired before the Commission, which had the benefit of all arguments raised before this court. It is therefore difficult to see how requiring the Commission to go through the motions of notice and comment rulemaking at this point would in any way improve the quality of the information available to the Commission or change its decision. The only result would be delay while the Commission accomplished the same objective under a different label. Such empty formality is not required where the record demonstrates that the agency in fact has had the benefit of petitioners' comments. Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 36, 405 F.2d 1082, 1104 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
For these reasons, we see no procedural irregularity of any substance in the Commission's 1975 Opinion. The Commission carefully studied the petitioners' arguments, both explicit in their written submissions and implicit in the Commission's own interpretations, the Wyckoff, Goodwill and Columbia Broadcasting System decisions, and rejected them in a well reasoned statement. The Commission thus satisfied the demands of the Administrative Procedure Act and the Due Process Clause.
IV. CONCLUSION
In conclusion, we find nothing in the Commission's Opinion inconsistent with the basic philosophy of Section 315 as amended in 1959. The 1959 amendment to Section 315 clearly limited to some extent the simple mechanistic application of that section. In creating a broad exemption to the equal time requirements in order to facilitate broadcast coverage of political news, Congress knowingly faced risks of political favoritism by broadcasters, and opted in favor of broader coverage and increased broadcaster discretion. Rather than enumerate specific exempt and non-exempt "uses," Congress opted in favor of legislative generality, preferring to assign that task to the Commission.
In attempting to implement the Congressional intent behind passage of the four news exemptions, the Commission has now reversed its prior interpretation and embarked on a new course which it believes to be more consistent with the letter and spirit of the 1959 amendment. According to our reading, the legislative history is inconclusive, but we find much support for the Commission's new interpretation. In these circumstances, we are obligated to defer to the Commission's interpretation, even if it is not the only interpretation possible. We find nothing in Congress' behavior since 1959, either active or passive, to indicate that the Commission's prior interpretation was necessarily correct, or that Congress adopted it. Moreover, we find no infirmity in the procedure by which the Commission changed its interpretation of the 1959 amendment, since the Commission was not required to proceed by rulemaking, and since nothing would be gained by requiring the Commission to so proceed. We reiterate that petitioners submitted lengthy comments to the Commission and advanced substantially all of the arguments advanced here. Finally, we note only in passing that this case involves issues in an intensely political area which this court enters with great reluctance. It is the job of the Commission in the exercising of its delegated authority, and ultimately of Congress, to make these kinds of front-line determinations. We find no basis for disturbing the Commission's action here, grounded as it is on the Commission's interpretation of Congressional intent, an interpretation which we find reasonable.
For the reasons stated herein, we affirm the Commission's Opinion. In so doing, however, we take comfort in the realization that Congress may correct the Commission if it has misinterpreted Congressional intent or overstepped the bounds of its discretion.
So ordered.
.Section 315(a) of the Communications Act of 1934, Act of June 19, 1934, ch. 652, § 315, 48 Stat. 1088, was identical to Section 18 of the Radio Act of 1927, Act of February 23, 1927, ch. 169, § 18, 44 Stat. 1170.
. The ruling under review is set forth at 55 FCC 2d 697 (1975); J.A. 141 (hereinafter referred to as Opinion).
. 47 U.S.C. § 315(a)(4) (1959).
. Daly, a perennial candidate in both the Republican and Democratic mayoralty primaries in Chicago, had complained that several stations presented newsclips showing the mayoralty candidates in the two primaries but refused to afford him equal time. The Commission ruled that the presentation of these filmclips constituted a "use" of the broadcast facility and, consequently, that Daly was entitled to equal time.
. Congress' concern was that rigid application of Section 315 to broadcast coverage of political news would act as a deterrent to any coverage of political news at all. This concern was voiced in the Report of the Senate Committee on Interstate and Foreign Commerce, recommending the passage of the bill which was finally enacted, as follows:
The inevitable consequence [of the FCC's rigid interpretation] is that a broadcaster will be reluctant to show one political candidate in any news-type program less he assumes the burden of presenting a parade of aspirants.
S.Rep. No. 562, 86th Cong., 1st Sess. 9 (1959), U.S.Code Cong. & Admin.News 1959, p. 2571.
. J.A. 22. The Federal Election Campaign Act Amendments of 1974, 26 U.S.C. § 9032(6), 9037, encourage early declarations by candidates for the Presidency by making matching public funds available.
.In this regard, it is interesting to note the large number of candidates for the Presidency in recent elections, both serious and "fringe." The Federal Election Commission has published a listing of some 52 Presidential and Vice-presidential candidates on whose behalf reports have been filed during 1975. See 40 Fed.Reg. 49682, 49684-89 (Oct. 23, 1975). In 1960, there were at least 8 candidates, in 1968, there were 14, and in 1972, there were 11. CBS Brief at 42, citing America Votes 10, A Handbook of Contemporary American Election Statistics (R. Scammon, ed. 1973).
. The Commission reaffirmed its 1964 holding that press conferences cannot be considered exempt as "bona fide news interviews" under Section 315(a)(2). Opinion, para. 31-35; J.A. 157-59.
. H.R.Rep. No. 806,86th Cong., 1st Sess. (1959).
. . . if the sole test of the on-the-spot coverage exemption is simply whether or not the station's decision to cover the event and to put it on a broadcast program constitutes a bona fide news judgment, there would be no meaning to the other three exemptions in § 315(a) since these, too, all involve a bona fide news judgment by the broadcaster. Carried out to its logical conclusion, this approach would also largely nullify the objectives of § 315 to give the public the advantage of a full, complete, and exhaustive discussion, on a fair opportunity basis, to all legally qualified candidates and for the benefit of the public at large.
40 FCC at 398 (footnotes omitted).
. 47 U.S.C. § 315(a)(3), not relevant here, explicitly retains the "incidental to" requirement.
. See the statement of Rep. Bennett of Michigan, 105 Cong.Rec. 16241. At the floor discussion of the bill following deletion of the "incidental to" provision, Bennett stated: "I am glad to see that the conference substitute omits this language because the majority of conferees felt as I do, that this requirement would lead to even greater confusion than we have at present under the Lar Daly decision." Id. at 17778.
. Rep. Moss, who had drafted the "incidental to" language, dissented from the conference report and during floor debate circulated a letter detailing his reasons. Rep. Bennett responded as follows:
I feel that this language ["incidental to the presentation of news"] would make the task of broadcasters and the FCC an impossible one and that even with the best intentions in the world neither broadcasters nor the Commission can meet the task of distinguishing between appearances which are incidental and appearances which are not incidental.
105 Cong.Rec. 17778.
. The Commission determined that the same rationale applied with respect to press conferences, stating that, "[P]ress conferences do not lose their exemption merely because the candidate's appearance is the central aspect of the news event." 55 FCC 2d at 708, para. 30; J.A. 157. In this regard, the Commission declined to adopt CBS's rationale which would have distinguished between Presidential and other press conferences based on the "unique status of the Presidency and the inherent newsworthiness of Presidential communications with the public." Id. at 711, para. 39; J.A. 161.
. By order dated October 17, 1975, No. 75-1994 (DNC) was consolidated with No. 75-1951 (Rep. Chisholm and NOW).
. 105 Cong.Rec. 14451 (1959) (remarks of Sen. Holland). See also 106 Cong.Rec. 13424 (1960) (Sen. Pastore).
. In drafting the exemptions, the Senate and House Committees drew from a number of proposed bills, including S. 1585, S. 1604, S. 1858, S. 1929, H.R. 7122, H.R. 7180, H.R. 7216, H.R. 7602, H.R. 7985, 86th Cong., 1st Sess. (1959). The final version did not include earlier proposals to enumerate specific exempt events, such as debates or panel discussions. See, e. g., the Hartke bill (S. 1858). The elimination of such specific formats, however, was not intended to exclude them if they could qualify under one of the general categories of news coverage in the final bill. Oren Harris, Chairman of the House Committee and the bill's floor manager, stated:
[T]he elimination of these categories by the committee was not intended to exclude any of these programs if they can be properly considered to be newscasts or on-the-spot coverage of news events.
105 Cong.Rec. 16229 (August 18, 1959). See also id. at 17782 (Sept. 2, 1959) (remarks of Rep. Harris).
In short, in the final version of the bill, Congress opted for exemptions based on general categories relating to news coverage, rather than on specific program formats, and this of necessity left the Commission with the task of deciding which particular events could qualify within the limits of the statutory language. Id. at 17778 (Sept. 2, 1959) (remarks of Rep. Harris). This is also clear from the language of Section 315(a)(4), "(including but not limited to political conventions and activities incidental thereto) . . . " (emphasis added).
. The Senate Report stated that, "The public benefits are so great that they outweigh the risk that may result from the favoritism that may be shown by some partisan broadcasters." S.Rep.No. 562, 86th Cong., 1st Sess. 10 (1959), U.S.Code Cong. & Admin.News 1959, p. 2572.
. A careful examination of the legislative history of Section 315 of the Communications Act and its predecessor, Section 18 of the Radio Act of 1927, reveals clearly that the fundamental objective of that statute was to require any licensee who had allowed any legally qualified candidate to use his facilities to afford equal opportunity to all other candidates for that same office. Its basic purpose was to require equal treatment by broadcasters of all candidates for a particular public office once the broadcaster made a facility available to any one of the candidates. This was a sound principle and the committee reemphasizes its belief in that objective.
Id. at 8, U.S.Code Cong. & Admin.News 1959, p. 2570 (emphasis added), quoted in Brief for petitioners Chisholm and NOW at 27 n.4.
.It seems beyond dispute, from a commonsensical point of view, that the Presidential press conference is an important news event. Such conferences are regularly printed in the newspapers — indeed, the New York Times regularly prints a transcript of each Presidential press conference. See generally Morgan, Ways, Mollenhoff, Lisagor and Klein, The Presidency and the Press Conference (1971); Strout, LBJ Meets the Press . . Sort of, 154 New Republic 13 (1966). The networks regularly have covered Presidential press conferences in their entirety since they first became available in the mid 1950's. In this regard, NBC notes in its brief that since 1955 it has carried more than 100 Presidential news conferences, almost all those available. NBC Brief at 35.
Debates between major candidates are also "news" in this respect. We do not understand petitioners to contend, for example, that the Nixon-Brown debate at issue in the Wyckoff decision was not newsworthy. They contend rather that the event derived its newsworthiness from the appearances of the candidates themselves and not from some independently newsworthy event and, hence, would have given rise to equal time obligations.
. The Commission's Brief states at 25-26:
In keeping with the focus on the type of news coverage of events rather than the events themselves, Congress chose to determine the bona fides of coverage by looking at the intent of the broadcaster rather than at the intent of the candidate . since a candidate always intends to advance his candidacy.
. Indeed, the Lar Daly case, the event which was responsible for the passage of the news exemptions, is in point. There Congress expressly overruled the Commission's holding that news coverage of a mayor's airport greeting of a foreign dignitary and his opening of a charity drive constituted a use of the broadcast media entitling all other mayoral candidates to equal time. At least with respect to the charity drive, the event can be deemed newsworthy only because of the mayor's appearance, and the appearance was certainly under his control. Similarly,
[i]n the case of political conventions the respective political parties largely control whether, in what capacity, and to what extent a particular political candidate shall participate in the convention; and the broadcaster exercises his news judgment primarily with respect to whether or not he will provide on-the-spot coverage of a particular political convention, and, if so, what parts.
H.R.Rep. No. 802, 86th Cong., 1st Sess. 7 (1959).
.We note that the 1959 amendment to Section 315 retained the "incidental to" test in the definition of a "bona fide news documentary" as a compromise between the Senate bill, which had excluded documentaries, and the House bill, which had not. See H.R.Conf. Rep. No. 1069, 86th Cong., 1st Sess. 4, printed at 105 Cong.Rec. 17777 (1959).
. Senate Joint Resolution 207 provided:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That that part of section 315(a) of the Communications Act of 1934, as amended, which requires any licensee of a broadcast station who permits any person who is a legally qualified candidate for any public office to use a broadcasting station to afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, is suspended for the period of the 1960 presidential and vice presidential campaign with respect to nominees for the offices of President and Vice President of the United States. Nothing in the foregoing shall be construed as relieving broadcasters from the obligation imposed upon them under this Act to operate in the public interest.
(2) The Federal Communications Commission shall make a report to the Congress, not later than March 1, 1961, with respect to the effect of the provisions of this joint resolution and any recommendations the Commission may have for amendments to the Communications Act of 1934 as a result of experience under the provisions of this joint resolution.
P.L. 86-677, 74 Stat. 554.
. This interpretation is also consistent with the reporting provision in subsection (2) of the Joint Resolution, supra.
. In Zuber v. Allen, the Court went on to state:
"It is at best treacherous to find in Congressional silence alone the adoption of a controlling rule of law." Girouard v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946). Its significance is greatest when the area is one of traditional year-by-year supervision, like tax, where watchdog committees are considering and revising the statutory scheme. Even less deference is due silence in the wake of unsuccessful attempts to eliminate an offending interpretation by amendment. . . . Where, as in the case before us, there is no indication that a subsequent Congress has addressed itself to the particular problem, we are unpersuaded that silence is tantamount to acquiescence, let alone . . . approval . 396 U.S. at 186 n.21, 90 S.Ct. at 324, 24 L.Ed.2d at 356 (emphasis added).
. See discussion in Part IIA of this opinion.
. In Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), cited in Kay v. FCC, supra, the Supreme Court stated:
[I]n the absence of any persuasive circumstances evidencing a clear design that congressional inaction be taken as acceptance of [an earlier decision], the mere silence of Congress is not a sufficient reason for refusing to reconsider the decision.
398 U.S. at 241-42, 90 S.Ct. at 1587, 26 L.Ed.2d at 205.
. See generally K. Davis, Administrative Law Treatise § 17.07 (1965).
. The declaratory ruling belongs to the genre of adjudicatory rulings. See Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U.Pa.L. Rev. 485 (1970).
. The views expressed in Chenery II and Wyman-Gordon make plain that the Board [the NLRB] is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board's discretion. 416 U.S. at 294, 94 S.Ct. at 1771, 40 L.Ed.2d at 153.
. Petitioner DNC filed a 25-page letter with the Commission in opposition to the CBS petition. J.A. 45. Petitioners Chisholm and NOW also commented on the CBS and Aspen petitions in a 46-page document submitted by the Media Access Project ("MAP"). MAP offered further comments on the proposals in a second 13-page document. These documents contain substantially the same arguments advanced in this appeal.
.Petitioners Chisholm and NOW further contend that the Commission has violated its own regulations which provide that it "may, in accordance with section 5(d) of the Administrative Procedure Act [5 U.S.C. § 554(e)], on motion or on its own motion issue a declaratory ruling terminating a controversy or removing an uncertainty." 47 C.F.R. § 1.2. Petitioners argue that the Commission was not presented with an actual controversy, since there was no request for equal time by any candidate against CBS or any other licensee. This is entirely too rigid an interpretation of the phrase "terminating a controversy or removing an uncertainty." The literal language and the fact that the rule contemplates action by the Commission sua sponte remove any doubt that the Commission's action in issuing the declaratory order was in accordance with its own procedural regulations.
. It is interesting, as Judge Wright notes, to compare the procedures followed by the FCC here with the more lengthy procedures approved in this court's en banc opinion in Ethyl Corp. v. EPA, 176 U.S.App.D.C. 373, 541 F.2d 1 (No. 73-2205, decided March 19, 1976). See Dissenting Op. at 41 of 176 U.S.App.D.C., at 389 of 538 F.2d n.99. The two cases differ substantially, however, in that the FCC's task here was to interpret a statute, while the EPA's task in Ethyl was to reach a conclusion based on scientific evidence. In the former case, the only relevant "public procedures" were hearings and debates already held by Congress; in the latter, extensive facts were to be studied by EPA and commented on by the public before a proper conclusion could be reached.