ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons and Hunter, Circuit Judges and Thompson, District Judge.*fn*
James Brownyard, the owner of W.H.Y.P. Country Radio, appeals from a judgment awarding to Warren Lechtner damages for violation of the Federal Communications Commission (FCC) Personal Attack Rule, 47 C.F.R. § 73.1920,*fn1 and for defamation under Pennsylvania law. We conclude that the complaint fails to state a claim arising under the laws of the United States, and that the judgment must be vacated.
In May 1980, James Brownyard, the owner of W.H.Y.P. Country Radio, transmitted a broadcast over the WHYP frequency in which he made certain remarks concerning Warren Lechtner, a member of the school board of North East, Pennsylvania. Thereupon Lechtner sued Brownyard for money damages for violation of the FCC's Personal Attack Rule, and asserted a pendent claim for defamation and slander under Pennsylvania law. The district court denied Brownyard's motion for summary judgment and proceeded with the matter through a jury trial. On June 4, 1981, the jury returned a verdict for Lechtner, awarding him actual and punitive damages for the state law claims and $500.00 in damages for Brownyard's failure to comply with the FCC Personal Attack Rule. Defendant then filed a motion for judgment notwithstanding the verdict or for a new trial, arguing that a private cause of action could not be implied from the FCC Personal Attack Rule regulations and that the court's exercise of pendent jurisdiction was improper.*fn2 Defendant's motion was denied, and this appeal followed.
The Personal Attack Rule was promulgated pursuant to the FCC's rulemaking powers under the Communications Act of 1934, as amended, 47 U.S.C. §§ 303, 303(r)(Act). The regulation was upheld by the Supreme Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969), against constitutional attack as a proper codification of the personal attack aspect of the FCC fairness doctrine. See Democratic National Committee v. FCC, 148 U.S. App. D.C. 383, 460 F.2d 891, 901-02 (D.C.Cir.1972) (personal attack rule is a corollary of fairness doctrine); United States v. WIYN Radio, Inc., 464 F. Supp. 101 (N.D.Ga.1978); Notice of Proposed Rule Making, Personal Attack/Political Editorials, 31 Fed.Reg. 5710 (1966). Before it was codified in a rule the obligation to afford an opportunity for response to a personal attack was developed in case by case adjudication by the FCC. Public Notice of July 1, 1964 (Fairness Primer), 29 Fed.Reg. 10,415, 10,420-21 (1964); Times-Mirror Broadcasting Co., 24 Rad.Reg. 404 and 407 (P & F 1962); Clayton W. Mapoles, 23 Rad.Reg. 586 (P & F 1962). The personal attack rule is, thus, a special application of "the general fairness requirement that issues be presented, and presented with coverage of competing views...." Red Lion, supra, 395 U.S. at 378, 89 S. Ct. at 1800. The only variation is that the broadcaster is not given the option of presenting the attacked party's side himself or of choosing a third party to represent that side: the person attacked is afforded the opportunity to rebut.
Given the origin of the personal attack rule as an aspect of the fairness doctrine, a review of the historical development of that doctrine would be informative, and we quote from the Court's opinion in Red Lion Broadcasting :
Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard. Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to the public "convenience, interest, or necessity."
Very shortly thereafter the Commission expressed its view that the "public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies ... to all discussions of issues of importance to the public." Great Lakes Broadcasting Co., 3 F.R.C. Ann.Rep. 32, 33 (1929), rev'd on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (50 S. Ct. 467, 74 L. Ed. 1129) (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC, and its successor FCC.... After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, ... the latter limitation on the licensee was abandoned and the doctrine developed into its present form.
There is a twofold duty laid down by the FCC's decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). The broadcaster must give adequate coverage to public issues, ... and coverage must be fair in that it accurately reflects the opposing views.... This must be done at the broadcaster's own expense if sponsorship is unavailable....
(Moreover,) (t)he fairness doctrine finds specific recognition in statutory form, is in part modeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history.
In 1959 the Congress amended the statutory requirement of § 315 (of the Act) that equal time be accorded each political candidate to except certain appearances on news programs, but added that this constituted no exception "from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Act of September 14, 1959, § 1, 73 Stat. 557, amending 47 U.S.C. § 315(a) (emphasis added). This language makes it very plain that Congress, in 1959, announced that the phrase "public interest," which had been in the Act since 1927, imposed a duty on broadcasters to ...