dissenting.
I respectfully dissent.
I agree with the lead opinion today that this case is not moot. I also agree that we should reject the D.C. Circuit’s analysis of section 315 in TRAC v. FCC, 801 F.2d 501 (1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987). I differ, however, with the lead opinion’s analysis of the 1959 amendment to section 315, particularly when it discusses the House conference -report. The full statement from that report is: “The conferees feel that there is nothing in this language which is inconsistent with the House substitute. It is a restatement of the basic policy of the ‘standard of fairness’ which is imposed on broadcasters under the Communications Act of 1934.” H.R.Conf. Rep. No. 1069, 86th Cong., 1st Sess. (1959), reprinted in, 1959 U.S.C.C.A.N. 2582, 2584.
The lead opinion today makes clear that the language of the 1959 amendment to section 315(a) is ambiguous, but finds clarity in the statute from its legislative history. The lead opinion contends the phrase “[njothing in the foregoing sentence shall be construed as relieving broadcasters ... from the obligation imposed upon them, under this chapter....” expresses Congress’ intent to merely authorize then-existing FCC policy.
The language the conference committee substituted clearly states that broadcasters are not relieved “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.” Id. That this language mandates the fairness doctrine is confirmed by the conference report passage I have-cited above and particularly its reference “to the ‘standard of fairness’ which is imposed on broadcasters under the Communications Act of 1934.” Conf.Rep. No. 1069, 1959 U.S.C.C.A.N. 2584.
*1444Although the conference report is the strongest expression of congressional intent as to the meaning of a statute, the statements by members of Congress during discussion of the conference report specifically reaffirmed the viability of the fairness doctrine. Senator Scott, a Senate Conferee stated: “We have maintained very carefully the spirit of the Proxmire amendment.” 105 Cong.Rec. 17881 (1959). Congressman Oren Harris, Chairman of the House Committee who reported the bill, stated that section 315 “reaffirmed the ‘standard of fairness’ established under the [Act].” Id. at 17778. These statements are not isolated examples. See TRAC v. FCC, 806 F.2d 1115, 1116-18 (D.C.Cir.1986) (Mikva, J., dissenting from denial of rehearing en banc) (reiterating numerous statements expressing similar interpretation of the bill).
I further believe that Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), sets forth a stronger view of congressional intent than does the court today. The following passages ' support my conclusion: “[I]n adopting the new regulations the Commission was implementing congressional policy rather than embarking on a frolic of its own.” Id. at 375, 89 S.Ct. at 1799. “The 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.” Id. at 380, 89 S.Ct. at 1801.
After setting out the specific statutory language substituted in conference, the Court continues: “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 discuss both sides of controversial public issues. In other words, the amendment vindicated the FCC’s general view that the fairness doctrine inhered in the public interest standard.” Id. “Here, Congress has not just kept its silfenee by refusing to overturn the administrative construction, but has ratified it with positive legislation. Thirty years of consistent administrative construction left undisturbed by Congress until 1959, when that construction was expressly accepted, reinforce the natural conclusion that the public interest language of the Act authorized the Commission to require licensees to use their stations for discussion of public issues_” Id. at 381-82, 89 S.Ct. at 1802 (footnote omitted). Justice White’s opinion in Red Lion then recited portions of the legislative history. Id. at 383-84, 89 S.Ct. at 1803.
The lead opinion disposes of Red Lion by relying on other statements in that decision which suggest that the Act merely authorized the Commission to adopt the fairness doctrine. Admittedly, there is some language to support this view. After carefully examining Red Lion, however, I see far more support for the proposition that the Court saw the bill as a congressional ratification of the fairness doctrine.
The idea that the fairness doctrine rests squarely on an affirmative congressional mandate is not new. From 1959 until 1981, the FCC. consistently interpreted the 1959 amendment as codifying the doctrine. Indeed, in 1981 the FCC sought to repeal the doctrine through legislative, not agency, action. As late as 1985 the Commission denied that “it had the authority without further Congressional action to eliminate the fairness doctrine.” TRAC, 806 F.2d at 1118 (Mikva, J., dissenting from denial of rehearing en banc) (citing FCC News Rept. No. DC-185 (Aug. 7, 1985)). Only after the FCC’s attempts to obtain congressional action failed did the FCC first contend that Congress had never codified the doctrine.
As the lead opinion points out, the fairness doctrine has roots extending back to 1927, and it was applied until 1985, when the Commission departed from it. The effect of abandoning this doctrine is highlighted by the following comment from Justice White’s opinion in Red Lion: “Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed.” Id. 395 U.S. at 392, 89 S.Ct. at 1807-08. In this day of single issue constituencies, this language has telling force.
*1445I need not discuss the issues in further detail, but I have found the discussion in Judge Mikva’s dissent from the denial of rehearing en banc in TRAC v. FCC, 806 F.2d 1115 (D.C.Cir.1986), to be particularly instructive.
I would be content to simply rest with this expression of my views of section 315, but the request for a remand requires careful consideration. This court today rejects the request by the Committee and the FCC to remand to the Commission for further proceedings, and errs in so doing.
Before us on rehearing en banc, the FCC takes the position that its reasoning was incomplete in its initial decision in this case when it held that section 315 was unambiguous and did not codify the fairness doctrine. The Commission’s initial rejection of the Committee’s section 315 codification argument contained only the following explanation:
In 1985, the Commission said that section 315 was subject to varying interpretations as to whether the doctrine was codified. We now have been convinced by the analysis in TRAC v. FCC ... that section 315 is clear on its face that the fairness doctrine is not codified. Nothing in the legislative history persuades us otherwise. On this basis, therefore, we decline to award relief for which complainants argue.
The lead opinion today definitively rejects the TRAC analysis. Thus, to the extent the FCC gave specific reasons for its rejection of the Committee’s claim, those reasons are struck down by today’s decision. The lead opinion’s rejection of the agency’s reasoning provides sufficient basis for a remand. See SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) (“[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in . exercising its powers were those upon which its action can be sustained.”).
According to Judge Friendly, Chenery instructs that “[wjhere the agency has rested decision on an unsustainable reason, the court should generally reverse and remand even though it discerns a possibility, even a strong one, that by another course of reasoning the agency might come to the same result.” Henry J. Friendly, “Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders,” 1969 Duke L.J. 199, 222. According to the lead opinion, however, “the Supreme Court clearly limited Chenery to situations in which the agency failed to make a necessary determination of fact or of policy.” At 1439. Chenery has traditionally been interpreted more broadly. Judge Friendly, for example, continues, “This is true whether the wrong reason is an erroneous view of the law, as in Chenery'itself ... or simply a rationale ... that is logically untenable.” Friendly, supra, at 222.
Having rejected the agency’s proferred rationale, the lead opinion embarks upon an analysis of at best conflicting legislative history in hopes of “determining] whether Congress has expressed a clear intent on the issue at hand.” After stating that where “congressional intent is clearly discernable, the agency must act in accordance with that intent,” the lead opinion apparently concludes the legislative history surrounding the adoption of section 315 meets this standard.1 The contrary interpretation of the Supreme Court2, other circuits3, the dissenting members of this court, and over twenty years of FCC Commissions belies the supposed clarity of this history.
If the court accepted even the limited proposition that the legislative history, like the plain language of the statute, is ambiguous, it should remand to the Commission for further proceedings. The Commission ar*1446gues for such a result. This would allow the Commission to consider its decision in light of our rejection of its TKAC-based analysis. Moreover, this case involves FCC regulations which impact broadcast media nationwide. It is undesirable for this circuit to announce a view of the statute when both parties ask that the FCC reconsider the statute, particularly given the distinct possibility that this court’s decision will be the law in only seven states. It is far more prudent and practical to remand the case to allow the FCC to determine whether the 1959 amendment codified the fairness doctrine.
The Supreme Court has instructed appellate courts to give deference to agency interpretations of ambiguous statutes. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 887, 842-45, 104 S.Ct. 2778, 2781-88, 81 L.Ed.2d 694 (1984). Providing such deference presupposes giving the agency an opportunity to interpret the statute — an opportunity prevented by this court’s decision not to remand. There is ample precedent for remand in situations similar to this case. See Cajun Elec. Power Coop. v. FERC, 924 F.2d 1132, 1136 (D.C.Cir.1991) (“[I]f an agency erroneously contends that Congress’ intent has been clearly expressed and has rested on that ground, we remand to require the agency to consider the question afresh in light of the ambiguity we see.”); Baltimore & Ohio R.R. v. ICC, 826 F.2d 1125, 1128-29 (D.C.Cir.1987).
The court today, in refusing to remand, defies the teachings of the Supreme Court.4
. The lead opinion states that "[d]eference to the agency is appropriate only when a court finds the statute to be ambiguous.” At 1440 n. 9. The lead opinion acknowledges that "the language of the 1959 amendment to section 315(a) is ambiguous." Id. at 1437. But, the lead opinion continues, "the legislative history makes it clear that the amendment does not codify the fairness doctrine.” Id.
. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), discussed infra.
. See, e.g., Maier v. FCC, 735 F.2d 220, 225 n. 4-5 (7th Cir.1984); Larus & Brother Co. v. FCC, 447 F.2d 876, 882 (4th Cir.1971).
. With the greatest respect for Chief Judge Arnold's views on the First Amendment as expressed in his opinion concurring in the judgment, I believe that the issue is not properly presented to us on the record now before us. Perhaps on remand a record could be made so that the issue could be properly considered.