WILENTZ, C.J., concurring.

We reached the same result as the majority in this case, but the difference between us is fundamental. That difference, we believe, is of critical importance to the future of New Jersey public television. We would not add State regulation of broadcast content by New Jersey's judges to the present federal regulation; we would not impose another restraint on this station's journalistic freedom. This majority would.

All television stations in the United States, in covering the activities of candidates, are subject to a comprehensive body of federal regulations embodied in the Federal Communications Act, 47 U.S.C. §§ 151 to 609, and in the Federal Communication Commission's interpretations of that Act. See, e.g., New Primer on Political Broadcasting and Cablecasting, 69 FCC2d 2209 (1978); Use of Broadcast Facilities by Candidates for Public Office, 24 FCC2d 832 (1970).

The majority holds that the Legislature intended to subject New Jersey's public television network to additional regulations in its campaign coverage in the form of requirements imposed by the State over and above those imposed by the federal statutory scheme. We respectfully disagree with the majority's conclusion that the Legislature intended to burden our public broadcaster with more than the federal requirements.

The legislative history of L. 1981, c. 107, N.J.S.A. 19:44A-39, admits of but one conclusion: the Legislature intended the New Jersey Public Broadcasting Authority, in its operation of New Jersey's public television network, to be subject only to federal laws and rules in its coverage of candidate activities. If added regulations are needed, it is for the Legislature to impose them, not this Court.

The basis for our conclusion is that the Legislature in the most explicit language, has directed that all such claims be determined "in accordance with federal law"; implicit in this direction is the requirement that all such complaints be handled by the Federal Communications Commission and the federal courts, and not by any New Jersey agency or any New Jersey court. It is clear that Mr. McGlynn's claim would have been denied under federal substantive law. See In re Ann Klein, Docket No. 8330-B, C5-860 (5/29/81).

While the majority does not explicitly base its holding on the desirability of such added restraints by the State, there are numerous references to factors apparently used by the majority to support its conclusions as a matter of good policy. While these policy considerations are ordinarily matters of concern solely to the Legislature, they are at times valuable aids in construing legislation. In this case, however, the legislative intent is so clear that such policy considerations should play no part in the Court's decision. Furthermore, we have very serious doubts about the wisdom of the policy of increased state control that forms some part of the majority's thinking.

I.

The Act establishing the Public Broadcasting Authority and authorizing the operation of a TV network was adopted in 1968 to become effective at the beginning of 1969. L. 1968, c. 405, N.J.S.A. 48:23-1 et seq. That Act contains not one word about candidate coverage, except for the language, relied on by the majority, prohibiting the Authority "from supporting or opposing any political party or candidate for public office, elective or otherwise. . . ." N.J.S.A. 48:23-9. This is not the language of equal time or fair coverage, either on its face or in light of its history. The prohibition against supporting or opposing any political party or candidate derives most immediately from the recommendations of the Governor's Commission on Public Broadcasting for New Jersey, contained in its report of May 1968. Governor's Commission on Public Broadcasting, Report and Recommendations to New Jersey Citizens (May 1968). The Commission envisioned the Public Broadcasting Authority as an independent entity in which direct government involvement should be kept to a minimum, an entity insulated from political interference and entanglements. Id. at 29. In light of this conception of the public broadcasting entity as a nonprofit and nonpolitical creature, the Commission recommended that it "should be prohibited from supporting or opposing any political party or candidate for public office, elective or otherwise, and from attempting to influence legislation." The Legislature adopted this language virtually verbatim, suggesting that it concurred with the Commission that the public broadcast stations should be removed from the vicissitudes of politics in determining its broadcast content. The prohibition against endorsing candidates was part of a design intended to free the public broadcast authority from government control and not, as the majority suggests, part of a legislative plan to impose upon the Authority judicially enforceable fairness requirements in coverage of the gubernatorial race. Had the Legislature intended any such obligation, it could easily have selected the model of the Federal Communications Act, which had been on the books for several years. The construction that transforms this prohibition against endorsements into a mandate for fair coverage is without justification.

The majority's reading of this provision (Section 9) of the Public Broadcasting Authority Act as a basis for its conclusion seems even more unlikely in light of a second apparent source of that section's language prohibiting political endorsements and lobbying. N.J.S.A. 48:23-9. In 1967 Congress passed an act establishing the Corporation for Public Broadcasting (CPB), 47 U.S.C. §§ 396-399. This act, the acknowledged model for the public broadcasting corporation recommended by the Governor's Commission, see Report and Recommendations to New Jersey Citizens, supra, at 10, provides first, in Section 396(f)(3), that the CPB "may not contribute to or otherwise support any political party or candidate for elective public office." Similarly, in Section 399(a) of the CPB Act, Congress mandated that "no noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for public office." A "noncommercial educational broadcasting station" is defined in the Act as

a television or radio broadcast station which —

(A) under the rules and regulations of the Commission in effect on the effective date of this paragraph, is eligible to be licensed by the Commission as a noncommercial educational radio or television station and which is owned and operated by a public agency or nonprofit private foundation, corporation, or association; . . . . [ 47 U.S.C. § 397(6)(A)].

The New Jersey Public Broadcast stations are within this definition and are therefore forbidden by Section 399(a) to engage in editorializing or political endorsement. The significance of this prohibition is illuminated by the Conference Committee report on the legislation that was to become the CPB Act:

The House amendment contains provisions which would prohibit any noncommercial educational broadcast station from engaging in editorializing or supporting or opposing any candidate for political office. The Senate bill contains no comparable provisions.

The managers on the part of the Senate accepted the House provisions when it was explained that the prohibition against editorializing was limited to providing that no noncommercial educational broadcast station may broadcast editorials representing the opinion of the management of such station. It should be emphasized that these provisions are not intended to preclude balanced, fair, and objective presentations of controversial issues by noncommercial educational broadcast stations. [Conference Report No. 794 to accompany S. 1160, reprinted at 1967 U.S. Code Cong. Ad.News 1772, 1834, 1835].

Thus, by virtue of Section 399 of the Corporation for Public Broadcasting Act, all noncommercial stations are subject to a ban on political endorsements similar to that in Section 9 of the Public Broadcasting Authority Act. Furthermore, it is clear from the legislative history of Section 399 that Congress anticipated that controversial issues would be presented, consistent with the ban on editorializing, in a balanced, fair, and objective manner. Yet it has never, until now, been suggested that Section 399 (practically identical to Section 9 of our Act) adds some requirement of equal or fair coverage of political elections to that already imposed on broadcasters by Section 315 of the Federal Communications Act, 47 U.S.C. § 315. It seems unlikely that the New Jersey Legislature, in following the federal example, intended such a radically different interpretation of the borrowed language without explicit direction to that effect.

The majority also finds support for its holding in Section 7(h) of the Public Broadcasting Authority Act, which provides that the Authority shall have the power to:

h. Assume responsibility for the character, diversity, quality, and excellence of programming which is released via its licensed facilities, provided that programs or series of programs of a controversial nature shall be presented with balance, fairness and equity; [N.J.S.A. 48:23-7].

Once again, the source of this language appears to be the CPB Act. In Section 396(g)(1)(A), the CPB is empowered to:

(A) facilitate the full development of public telecommunications in which programs of high quality, diversity, creativity, excellence, and innovation, which are obtained from diverse sources, will be made available to public telecommunications entities, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature; [emphasis added].

The meaning of this language of objectivity and balance has not been explicated by any decisions of the FCC or the federal courts, but this in itself is significant. In Accuracy in Media, Inc. v. F.C.C., 521 F.2d 288 (D.C. Cir. 1975), the court affirmed a ruling of the FCC that the FCC lacked jurisdiction to enforce the "objectivity and balance" mandate of Section 396(g)(1)(A). The court read Section 396(g)(1)(A) as a guide to Congressional oversight policy and as a set of goals to which the Directors of CPB should aspire. "The provision is not a substantive standard legally enforceable by agency or courts." 521 F.2d at 297. See also The Network Project v. Corporation for Public Broadcasting, 561 F.2d 963 (D.C. Cir. 1977) (federal courts have no power to enforce 47 U.S.C. § 396(9)(1)(A)). We similarly decline to read Section 7(h) as a standard enforceable in the courts of this state. It is quite clear that the "balance, fairness, and equity" language of Section 7(h) does not concern candidate coverage, but rather, like its federal counterpart, it is intended as a guide for the PBA to follow in its coverage of issues and ideas and policies.

From 1971 when the Authority commenced operations of its stations, to 1977 no complaint was filed either with the FCC, the Authority, the courts, or anyone else, as far as we know, asserting that the Act contained any requirements whatsoever concerning candidate coverage. With thousands of mayors, councilmen, freeholders, legislators, and even governors running for office, one would have thought that someone would have read this statute in the same manner as the majority and brought an action based on it. It was, however, and is a statute simply devoid of requirements concerning campaign coverage, and everyone knew it. It is not as if this were some abstruse piece of legislation tucked away in the crevices of the Federal Communications Act or its interpretations. This was New Jersey's own statute, New Jersey's own television station, and one might have expected aggressive pursuit of that station with allegations of failure to do "basic fairness" to particular candidates if any such obligation existed.

Failure to include requirements for candidate coverage was not the result of legislative inadvertence. There apparently was no perceived need for it. The station was already subject, as are all television stations, to the provisions of the Federal Communications Act and its many regulations including those concerning candidate coverage. The Legislature presumably concluded that NJPTV needed no more regulations than those applicable to all other stations.

That situation changed in 1974. During that year, the Legislature passed a law providing for the partial public financing of the gubernatorial general election. L. 1974, c. 26. Section 14 of that Act, N.J.S.A. 19:44A-1 et seq., contained the first obligation, other than the prohibition against political endorsements, imposed upon the Authority by the Legislature concerning candidate coverage. It required the Authority to "promote full discussions of public issues by the candidates for the office of governor . . . free of charge to any such candidate." N.J.S.A. 19:44A-39. Prior to the enactment of that section, and the language just quoted above, the only reference to "full discussions of public issues" was a clarifying statement in the Act of 1968 to the effect that the prohibition against candidate endorsement was not to be construed as precluding the station "from promoting full discussions of public issues." By virtue of N.J.S.A. 19:44A-39, this was transformed into an affirmative obligation to promote such discussions, and now the discussions were to be "by the candidates." The notion of "basic fairness" or "fair treatment" of candidates, so easily expressed if intended, is nowhere to be found in that sentence. There is a specific obligation, however, that follows, for the station by that same section was specifically required to afford at least one hour of TV time for each candidate and one hour for all appearing together. Again it would have been quite simple in that sentence to indicate some obligation of fairness where more than one hour was to be supplied, but the Legislature declined to do so. Once the one hour requirements were complied with, that statutory section was satisfied, and the station was free to cover candidates as it saw fit, subject, as were all other stations, to federal law and regulations.

We agree with the majority that this new requirement was directly related to the public financing law, N.J.S.A. 19:44A-1 et seq., of which it was a part. Like the majority, we are convinced that the Legislature, having decided to expend public funds to make it easier for gubernatorial candidates to run, wanted to make their entry into the campaign realistic by guaranteeing at least a minimum amount of free TV time on New Jersey's own stations. Other than that minimum guarantee however, no more was provided: neither equal time, nor some notion of "fair treatment."

The 1974 law set the pattern for providing requirements for campaign coverage of the Authority in the election laws, rather than in the PBA Act. In 1980 the Legislature passed a law providing for the partial public funding of gubernatorial primaries. N.J.S.A. 19:44A-3(m)(1)(3). The law became effective on July 23, 1980. The Legislature, apparently realizing that the number of candidates in the primary from both major parties would be substantial, reduced the individual time coverage requirements in the primary as compared to the general election from one hour to 15 minutes, but doubled the joint appearance requirement to two hours. Each candidate in the primary, therefore, knew that he or she was entitled to at least 15 minutes of individual coverage and that he would participate in a joint appearance with all other candidates (of his or her party) of at least two hours' duration. The general obligation contained in the first sentence, that the Authority should promote full discussions of all issues by the candidates, was extended to the primary, but the specific obligation was different. Again, it seems quite clear that once the minimum obligation of 15 minutes for each candidate and two-hour joint appearances had been satisfied, the Authority was free to provide additional coverage as it saw fit — subject always to federal law.

Obviously the Legislature had reduced the one hour of required time for each candidate to 15 minutes because it believed that with so many primary election candidates, the one-hour provision would constitute an unreasonable burden on the station. It also must have known that the station, unless restrained, might afford the front-runners much more than 15 minutes each and minor candidates much less. It did not attempt, however, to require equality in any time allocated to a candidate above 15 minutes, nor did it impose any "fairness" requirements on such excess coverage.

Apparently even this seemingly modest requirement was deemed oppressive by the Authority for in 1981, with the primary campaign warming up, and with the possibility of 20 to 30 candidates running, the Authority sought to have legislation introduced relieving it completely of this specific hourly commitment, both for individual appearances and joint appearances. Obviously whatever discretion the law then gave the station was not deemed enough. The bill as introduced (S. 3059, introduced on January 26, 1981) eliminated all obligations for providing specific time coverages for individual candidates and for joint appearances in both the primary and general election for governor, leaving only the general obligation to "promote full discussions of public issues by the candidates" in both the primary and general election. This general obligation, however, which was all that remained in the section, was qualified by the new language "in accordance with law" and, as before, "free of charge to the candidates."

The station was thus left with the general obligation to promote full discussions of public issues "in accordance with law," and the sponsor explained, in his attached statement, that the "bill would direct the New Jersey Public Broadcasting Authority to provide coverage of the gubernatorial primary and general election campaigns and give the Authority the discretion, within the limits of federal and state law, as to the manner in which it does so" (emphasis supplied). Obviously the sponsor was drawing a distinction between the direction of the Legislature — to provide coverage — and the discretion of the Authority — to determine the manner in which it would provide such coverage. That discretion, however, was to be "in accordance with law," the sponsor indicating by his statement his intention that those words meant in accordance with federal and state law.

The issue before this Court was decided once and for all by the Senate committee to which this bill was referred. It amended the legislation by inserting the word "federal" into the phrase, so that the discretion which the Authority was given as to the manner in which it would promote full coverage was limited only "in accordance with federal law" (emphasis supplied).

No legislative intent could be more clearly spelled out. Faced squarely with the question of whether the discretion of the Authority should be limited by both federal and state law, the Senate committee decided that it should not, that the only limitation on the Authority's discretion should be federal law. The statement issued by the Senate committee is consistent with its obvious intent. It noted that the bill permitted the Authority "a greater degree of flexibility in the promotion of the discussion of public issues by gubernatorial candidates in the primary and general election campaigns.

The Governor noted, upon signing the bill, that it would "give the New Jersey Public Broadcasting Authority maximum discretion, within federal law, in its coverage of the gubernatorial primary and general election. . . . [It] removes any specific time restraints and allows NJPTV to operate under FCC guidelines." In approving a bill passed by the Legislature the Governor may be perceived as acting in a legislative capacity and as part of the legislative branch of the state government. His action upon a bill may therefore be considered in determining legislative intent. Lynch v. State, 19 Wn.2d 802, 145 P.2d 265, 269 (1944); Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 104 P.2d 478, 481 (1940); see also 2A C. Sands, Sutherland, Statutory Construction (4th ed. 1973) § 48.05.

The clarity of this legislative action is such as to render irrelevant the issue of whether the Act through Section 7(h) or Section 9 contained requirements concerning candidate coverage, or whether the first sentence of N.J.S.A. 19:44A-39 imposed some obligation of fairness or equality. Even if we are wrong in our belief that it is unreasonable, and constitutes a perversion of the language and intention of those sections, to construe them as imposing candidate coverage obligations, we cannot be wrong in our conclusion that N.J.S.A. 19:44A-39 is explicitly addressed to that subject. The Legislature having focused, in that 1981 amendment, upon candidate coverage, having been confronted with the question of whether the Authority's discretion in such coverage should be limited by both federal and state law, and having decided that it should be limited only by federal law, any arguable impact of these other sections dissolves. Such impact, if any, has in effect been repealed by the 1981 amendment, for there the Legislature spoke unmistakably concerning the Authority's candidate coverage obligations.

The autonomous nature of the Authority is relevant here in deciphering the legislative intent. The Act is replete with evidence that the Legislature wanted the Authority to be independent of governmental control in operating the station. Section 7(h) is a legislative bill of rights for the Authority, charging it with the responsibility to develop programming of "character, diversity, quality and excellence." N.J.S.A. 48:23-7(h). The language is suggestive of hope that NJPTV will develop into a vital channel for discussion, controversy, and education in the only way we know, namely through the creative efforts of unrestricted journalists. Even in its sole prohibition — against political endorsement — the Legislature was careful to ensure against implications of any further prohibition. It said that the Authority shall "not be precluded from promoting full discussions of public issues." N.J.S.A. 48:23-9.

This independence is explicitly provided for in the Act, N.J.S.A. 48:23-3, and is confirmed by provisions concerning the structure and operations of the Authority. The head of the Authority is the New Jersey Public Broadcasting Commission, which consists of ten citizen members and five heads of department. N.J.S.A. 48:23-4(a). The citizen members, who outnumber the state representatives two to one, serve for fixed terms and are to be named without regard to political allegiance. N.J.S.A. 48:23-4(c). It is that Commission that selects the Executive Director (subject to the approval of the Governor) and it is to the Commission that the Executive Director is responsible. N.J.S.A. 48:23-4(g), 48:23-5. Furthermore, all NJPBA employees except those performing stenographic, typing, and other tasks unrelated to public broadcasting, are "unclassified" under civil service, another indication of NJPBA's autonomy.

These provisions make it clear that the Authority is no less independent than such agencies as the Turnpike, Parkway, and Sports Exposition Authorities, even though it does not have an independent financial existence. Indeed, in some important respects it is even more independent, for unlike the previously named authorities, the minutes, and therefore actions, of the Authority are not subject to veto by the Governor, and its members cannot be removed by the Governor. N.J.S.A. 48:23-6.

This grant of independence may have been motivated by more than the Legislature's concern for robust journalism. The Act contemplates that New Jersey's station will work closely with other educational channels, such as WNET's Channel 13, through voluntary cooperation and agreements arrived at for their mutual benefit. Such cooperation would be most difficult if the operators of NJPTV were viewed by their counterparts at Channel 13 as having substantially less programming independence or as being restricted in fact or potentially by government regulations. Such cooperation has occurred and has worked well. Furthermore, financial sources other than the State Treasury were contemplated by the Act. N.J.S.A. 48:23-7(k), (l). In fact, one third of the station's revenues in fiscal 1980 were derived from funds other than the State Treasury — including funds from the Corporation for Public Broadcasting a federal corporation, which contributed over one million dollars that year, and WNET (Channel 13), which contributed for the joint news project, New Jersey Nightly News, somewhat more than a million dollars. New Jersey Public Broadcasting Authority, Annual Report 1980. These outside funds are not only a symbol of the Authority's independence but might not be so readily forthcoming without that independence.

Obviously the Legislature in enacting the minimum time coverage requirements in 1974 and 1980 asserted some control inconsistent with this autonomy. For reasons mentioned above, the Legislature thereafter decided that such intrusion into the affairs of the Authority was unwise and repealed those requirements. The construction of the legislation by the majority, however, represents a greater invasion of the Authority's independence than the previously carefully defined requirements imposed by the Legislature. While apparently burdensome, those time requirements were quite specific and, once they were met, the station's operators were free to resume programming independent of any legislative control. The majority's formulation leads to permanent control through requirements applicable to every form of gubernatorial candidate coverage, day in and day out, as the campaign progresses. And the standard is so indefinite that it must cause great doubts on the part of those responsible for programming. It is not enough to say that all they need to do is try to be fair, for they know that some court or agency may decide that they were not. There will be a definite dampening effect on programming creativity.

Would the Legislature, having thus decided that the station should be independent and having fairly consistently abided by that decision, want to impose such strictures on the operators of this station? Every indication from both the 1981 amendment and the prior treatment of this station points in the opposite direction. The majority's concerns about potential political interference are of course substantial, and must be addressed. There is no doubt that any governmental agency is vulnerable to such control, and certainly the temptations to control a TV station are great. It was in the structure of the Authority, however, that the Legislature wisely sought to create effective obstacles to such control, not through the heavy hand of mandatory programming requirements. That such political control is a risk is obvious, but it was for the Legislature to decide that it was a risk worth taking in view of the perceived advantage of giving this station its only chance to grow into something meaningful through freedom — freedom not only from political control, but from the kinds of strictures and regulations that might be thought necessary to prevent such control.

Here the concern is not the risk of the political unfairness of a privately owned station with its own business interests and the profit motive of the owner. That risk has already been taken by Congress and the FCC by granting almost complete freedom to such stations. It is the risk of political control of a government station that the majority is worried about. It is ironic that the majority thinks the Legislature was unwilling to take the same risk of political unfairness with this station that has no profit motive, and has been created expressly to serve the public interest. We suggest that the risk of political control of this station is preferable to the damage of governmental control of its candidate coverage programming.

The majority suggests that our construction of the law renders N.J.S.A. 19:44A-39 superfluous, and, of course, the canons of statutory construction direct that a statute should not be interpreted so as to render it meaningless. 2A C. Sands, Sutherland, Statutory Construction (4th ed. 1973), § 46.06. It is not at all meaningless. It is no less meaningless than Section 7(h) of the Act which imposes upon the Authority the responsibility for its own programming. Section 39 (N.J.S.A. 19:44A-39), though not intended to be enforced by litigation, is a direction by the Legislature to the station as to how to conduct operations, a guideline for legislative oversight. Cf. Accuracy in Media v. F.C.C., supra; The Network Project, supra. The fact that the obligation to promote such full discussion cannot be enforced in any state court or by any complaining party does not mean that the provision is meaningless. Not every law has to have a lawsuit to make it meaningful. Those who hold the purse strings usually do not have to sue their beneficiaries in order to have their wishes respected.

The majority also claims our conclusion that the Legislature directed full discussion, on the one hand, but gave the Authority discretion under federal law concerning compliance, on the other, is contradictory. There is no contradiction at all: the Legislature is telling the Authority — not ordering it — that it should promote candidate discussion (presumably the Authority will voluntarily do so) but that it will be judged solely by federal law as to all aspects of its coverage, including the extent thereof. We are confident the Legislature will not find any contradictions in our opinion with its clearly expressed intention, nor will the station experience any contradictions in its operations.

II.

The majority has decided that the 1981 amendment, along with all of the prior laws, evidences a legislative intent to impose upon the Authority candidate coverage obligations in excess of those provided by federal law and regulations. As to all aspects of its candidate coverage (according to the majority there are no exceptions, although there is some gradation for news coverage) the Authority is required to be "fair, balanced, and equitable" towards all candidates in the primary and general election for governor, taking all of the circumstances, whatever they may be, into consideration. The Court's language is not simply precatory, for any candidate claiming unfairness is presumably given a remedy through the courts. The court is to provide a remedy only if, under all of the circumstances, he can prove that he has been treated unfairly.

To be compared with the majority's facile formulation of a standard that the Authority is supposed to follow (presumably a standard that is thought to be meaningful, one that will provide an actual guide when the Authority and its agents have to make decisions concerning candidate coverage) is the thirty year history of the Congress' treatment of this same subject and the FCC's interpretations thereof, along with the many cases litigated pursuant thereto. There are few tasks that have been found by Congress to be more intractable and complex than devising legislation and a set of rules for the "fair" treatment of candidates on TV. The FCA started out with an equal time provision, 47 U.S.C. § 315, that was subsequently interpreted by the FCC, Lar Daly (Columbia Broadcasting System), 18 P. F. Radio Reg. 238 (1959), to require equal time for all candidates even where the particular candidate covered was shown in a news program. "Equal time" as a congressional standard was not enough; experience showed it had to be tempered with fairness and good common sense.

There followed the congressional exemptions to the equal time provision designed to provide such fairness, 47 U.S.C. § 315(a)(1-4). They exempted stations from equal time obligations where the coverage complained of occurred in a bona fide newscast, interview program, documentary, and the like. There then followed a multiplicity of FCC interpretations of both the equal time obligation and its exemptions. The proliferation of disputes was such that ultimately the FCC was driven to the conclusion that so long as the candidate coverage occurred in a newscast, interview program, or a documentary, etc., it was automatically exempt, regardless of the source or format of the coverage or the degree to which it disproportionately covered one candidate to the exclusion of others. If included within an exempt broadcast, the FCC has concluded, it is irrelevant that it would not be exempt outside of that context. Broadcasters were thus left leeway to give time to those candidates whom they wished to cover, while giving less or no time to others, by simply including the coverage in one of the exempt formats. And the FCC will not question the broadcasters' decision unless it is shown that such a decision is "clearly unreasonable or in bad faith." Citizens for Reagan, 58 FCC 2d 925, 927 (1976); Florio for Governor Committee, 67 FCC2d 155 (1977). This deference is not an abdication of agency authority, but rather a position wholly consistent with Congressional intent. The 1959 amendments to the FCA, which established the exemptions, include the term "bona fide" in describing each category as a deliberate method of maximizing broadcaster discretion. House Committee Chairman Harris, floor manager of the amendments in the House, said the term "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. 17782 (1959).

More was involved in these FCC decisions than the belief that the proliferation of TV stations had guaranteed fair coverage, for obviously it was, and is, still possible that all of the stations together covering a particular campaign would be unfair to a particular candidate. What was involved really was the frustration felt by the FCC arising from the enormous difficulty of the problem assigned to it: it was simply impossible to determine how to interpret the exemptions — a task assigned to the FCC by Congress — while keeping in proper balance the legitimate and almost overriding need of the stations for independence in their editorial judgments about coverage. Given this situation the FCC opted, little by little, for very substantial freedom for the TV operators. Its beliefs have finally crystallized into a publicly stated position by the FCC that all of the provisions concerning equal time and fairness to candidates should be repealed.

It is this problem that the majority thinks it has addressed by requiring the Authority and its TV station to be "fair." It really has not even scratched the surface. Yes, it notes the complexities, the differing circumstances, the interplay of factors that might affect a decision in one instance and not in another, the circumstances that might result in one candidate getting less time than the other, but all of that simply represents a recognition of the obvious complexity of the problem without providing a solution for it.

What the majority has done is impose upon the courts the duty of solving immediately a problem that Congress and the FCC have not been able to solve for 30 years. We say "immediately" for the legislation which the majority finds was part of the statutory scheme that imposed this new obligation was passed by both houses and then signed by the Governor in April of 1981, about two months before the primary election. If the majority thinks that our courts were preparing for this event they are mistaken. Our courts had absolutely no advance warning, had made no preparations, had no experience and probably little expertise in a subject requiring great expertise. They were, according to the majority, expected to adjudicate disputes among 21 candidates, disputes of the most complex nature, disputes that would have been asserted and required resolution practically immediately, for these questions cannot be put aside for future study.

The unreality of the majority's conclusions is best perceived by recalling the situation when the Legislature passed this amendment in 1981. The notion that the Legislature intended in April 1981 to thrust this new obligation (for we assume that even the majority would agree that no matter what it thinks the law is, neither the Authority nor the courts were prepared for the majority's post hoc discovery of this law) on the courts two months before the primary election is incredible. What did the Legislature intend in April 1981, two months before the most complex, confused primary election in New Jersey history? The answer is clear: it intended to adopt the settled rules of federal law administered by the FCC, not some new ill-defined standard with no one with expertise to interpret and enforce it.

But even today, the majority's result spells chaos. One group of candidates (there are 13 gubernatorial candidates) may seek relief through the FCC, another through New Jersey's courts, with differing results and differing policies perhaps guiding both. There is no basic "fairness" or "fair treatment" doctrine (as the majority uses those terms) guiding the FCC, and there is no "equal time" doctrine guiding our courts. On the same dispute where more than one candidate complains about the same failure of coverage, one may go to the FCC and get no relief, the other to our courts and obtain relief; appeals may be pending in the Court of Appeals in a Federal Circuit, while the same issue is being decided by the Appellate Division in New Jersey. The frictions between the federal and state systems inherent in this interpretation by the majority are to be deplored.

What the Legislature intended, and wisely we believe, was to commit all of these problems to the FCC. As it indicated explicitly and unmistakably, the Legislature wanted only federal substantive law to govern disputes about candidate coverage. It would make little sense to go that far and then to say that the federal substantive law should be interpreted by some agency in New Jersey or by our own courts. The FCC had more than 30 years of experience in developing that substantive law, it had been given by Congress the power to interpret the Federal Communications Act, 47 U.S.C. 315(d), it had unparalleled expertise in the field. It seems obvious that the Legislature intended the FCC to be the sole arbiter of these disputes, and the federal courts the only courts through which FCC determinations could be challenged.

This very case demonstrates the pitfalls of the majority's conclusions. It is obvious, and understandable, that we are a much better educated Court on this issue than we were the day we first decided the case, after only a few hours of study, but that is how most of these cases will have to be decided: on short notice, with little time to study and reflect, by courts ill-suited for the task. The point is that the New Jersey Supreme Court itself was and is far from expert in this essentially regulatory field, yet we stand now committed to a decision fundamentally at variance with the operating rules of the Federal Communications Commission, which on precisely the same issue ruled through its staff, that the program on which the challenged coverage occurred was exempt from regulation; the kind of standard imposed by this Court to be used in New Jersey to test candidate coverage played no part in its decision. See In re Ann Klein, Docket No. 8330-B, C5-860 (5/29/81). The majority's conclusions must inevitably lead to confusion of all kinds, to say nothing of a dilution of the public's confidence. How else are people to react when this Court, through strained reasoning, adopts a standard of content review totally at variance with the federal agency acknowledged to be the expert in the field? How can we explain to anyone this Court's assertion of reviewing power in accordance with New Jersey law, leading to such contrary principles, in the face of a statute that clearly directs that campaign coverage be determined "in accordance with federal law"?

III.

How, it might be asked, can anyone be harmed by subjecting an Authority to a rule of balance, to a standard of fairness, to a requirement of equity? It sounds so simple and so right, yet it is so complicated and so wrong. Not only is the doctrine of fairness one of the most complex in the field of broadcast regulation, not only is its enforcement by courts one of the most difficult judicial tasks, but, apparently unrecognized, there is a competing interest, and another complicated issue. The competing interest is that of a free press and the other issue is the effect of regulations of this sort on untrammeled programming, editorial judgment, and news coverage. It is not enough to say to those who value the freedom of the press that great deference will be given to their judgments about what is newsworthy and what is fair in coverage as the court reviews their programming, newscasting, and editorial determinations. Are our judges equipped for this task? Will they do it any better than other censors who have failed in the past?

We mention the impact of the majority's decision on the ability of the station to make its own decisions concerning programming freely, not as an appeal to a particular policy but as an aid to legislative intention. There are obviously competing values involved: on the one hand we all want full coverage of the candidates in New Jersey elections, our station is uniquely suited to provide such coverage, and we want it to be fair. Present federal law and regulations as well as adjudicated decisions by the FCC give us some assurance that this will be the case but perhaps, we think, not enough. We therefore look for something else. A substantial argument can presumably be made that it is good policy to impose such additional requirements. On the other hand, in interpreting the legislation — and we believe it really requires no further interpretation — it would be a mistake to minimize, as the majority seems to have done, the impact of its decision on the ability of this station to thrive and develop. Not only will its operators not know (in a practical way so as to guide them) what standards they are supposed to conform to, but since the obligation covers absolutely all gubernatorial candidate coverage, news, interviews, spots, documentaries, statements, and the like, there will never be a time when those who determine the station's programming can sit down and honestly discuss and decide, for themselves, as creative journalists, just what would be in the best interest of the public when it comes to candidate coverage. They will not be able to decide, by themselves, how to convey most effectively what a campaign is all about. There will always be the presence of government sitting with them at every meeting, influencing their decisions through "standards" and mandates. The creative energy that bursts only in an atmosphere of freedom will be stifled by the rule of the majority.

We realize that the First Amendment protection of speech has been applied differently to radio and television because of the special characteristics of these electronic broadcasting media. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 386, 89 S.Ct. 1794, 1804, 23 L.Ed.2d 371, 387 (1969). But we believe that the New Jersey Legislature, having carefully created the Authority as an autonomous agency, independent of both the Governor and the Legislature, never would have intended such a standard, oppressive in its effect, to be imposed upon an Authority that it explicitly charged with the responsibility to determine its own programming independently. N.J.S.A. 48:23-7(h). Our point here, however, is that if the majority has proceeded on the theory that it is assuring fairness to candidates without doing much damage to the ability of this station and those who operate it to develop the kind of dynamic image and personality that will allow it truly to compete with stations that operate in an atmosphere of freedom, it is mistaken.

The rule of the majority will tend to turn journalists into bureaucrats, Ed Murrows into lawyers. We do not know now what its real effects will be, for the impact of these restraints on journalistic freedom is very hard to measure over a short period of time. It is sufficient for our purposes to agree with the United States Supreme Court that:

For better or for worse, editing is what editors are for; and editing is the selection and choice of material. That editors — newspaper or broadcast — can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to preserve higher values. The presence of these risks is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility — and civility — on the part of those who exercise the guaranteed freedoms of expression. [ CBS, Inc. v. Democratic National Comm., 412 U.S. 94, 124-25, 93 S.Ct. 2080, 2097, 36 L.Ed.2d 772 (1973)].

The restraint implicit in the majority's rule is substantial and one that this Court would not ordinarily impose, given its history of solicitude for freedom of the press, without the strongest evidence of a legislative intent. There is none: indeed there is quite the opposite.

IV.

In this case, with the best of intentions, the majority has ventured into an area that is beyond the expertise of the most expert, an area where the greatest damage can be done if those dealing with the subject matter are not extremely sensitive to the problems involved. The simple faith that promulgating a standard of "balance, fairness, and equity" and allowing the courts to enforce that standard will resolve the competing interests of fair coverage and freedom of publication is misplaced. It is extremely difficult to find a satisfactory middle ground between absolute freedom and total control in these matters. While the Court would allow the Authority considerable discretion in determining its programming based upon all of the facts and circumstances, it is not at all clear whether the reviewing entity will conclude that some facts and circumstances were not sufficiently evaluated or weighed and that the result constituted an abuse of that considerable discretion. It is bitter medicine to a minority candidate to tell him that balance, fairness and equity allows him only 15 minutes while major candidates are given 20 hours. He will say that you, the State, are making certain that he will never be known, that your impression of him as an unknown candidate is self-fulfilling prophecy, and that your control of the main channel of public communications requires you to do more in your allocation of time than count the noses of those who have already heard of him through other means. And the major candidate will say it is unfair to give a minor candidate what the major candidate deems to be excessive time simply because the station views a particular issue seized upon by the minor candidate as one of overriding public interest — or at least one that the station believes should become of overriding public interest. How do you decide what is "balanced" or "fair"? How do you review these determinations, which involve not only a group of complex factors and circumstances but also value judgments that simply are not subject to review by any consistent rational standard — an essential ingredient to any system of administrative review. With such a vague set of guidelines as "basic fairness" and "fair treatment" the courts will either, like the FCC, abandon their role completely, or ultimately become, in effect, the arbiter of what is fair and equitable in campaign coverage.

We do not mean to suggest that there can never be devised workable standards of coverage that tend to assure fairness and provide minimal interference with the editorial freedom that is required if a station is to perform its essential function of serving the public interest. It has not been done yet, however, and it certainly is not done in the majority opinion. The most likely result of the majority's efforts, besides all of the other adverse impacts mentioned herein, will be the transformation of what is becoming a vibrant television station providing exciting coverage of New Jersey events, issues and candidates into an increasingly dull transmitter of selected segments of a campaign, selected by people more concerned with the bureaucrats and judges who will review their editorial determinations than with the public that is supposed to benefit from their programs.

Based on the record in this case, it appears to us that, in a very difficult situation, NJPTV provided excellent coverage of the primary. This Court — including us — concluded the coverage could even be better when, during the critical last week of the campaign, we ordered the station to give scarce prime time equally to all candidates even though it had become absolutely clear that the campaigns of some of them, regardless of the candidates' merits, had become meaningless politically. Every hour of that prime time given to such campaigns because of our decision was taken away from the candidates who mattered to the public; more pointedly, every such prime time hour was taken away from a public that very much wanted to know more about the candidates it thought important, and had very few hours left.

During those critical last days of the campaign, we substantially diminished the public's opportunity to learn more about the candidates that counted — not to us, not to NJPTV, but the candidates that counted to the public. One can only imagine the damage that will result when that kind of judicial supervision of campaign coverage, almost always on an emergent basis, is applied to an entire campaign, as it will under the majority's rule, instead of just to the last few days. The majority's new rule, while it leads to a reversal of our damaging prior judgment, guarantees that our courts will continue in this and future campaigns to inflict the same kind of damage on the station, the candidates, and the public.

Worse yet, even though not specifically determined in this case, is the irresistible conclusion from the majority's reasoning, that from now on at all times — not just at campaign time — our courts under Section 7(h) will also act as overseer of the station's coverage of controversial issues.

We concur in the reversal of the Appellate Division's judgment and in the dismissal of McGlynn's prerogative writ action.

POLLOCK, J., concurring.

I concur in the result, but not the reasoning, of the majority. The difference is significant. With Chief Justice Wilentz, I believe that the New Jersey Legislature intended that NJPTV be subject only to federal law in its coverage of political candidates. My disagreement with the majority, however, runs deeper.

Despite comprehensive federal regulation of political broadcasting, administered by an agency capable of ensuring the precise result the Court reaches today, the majority holds that New Jersey's courts may review independently the broadcasting decisions of the journalists of NJPTV. It reaches that conclusion by finding that state control over the content of the news is justified by state ownership of NJPTV. I disagree.

Historically the relationship between the courts and the media has been an uneasy one, calling for a careful balance of extraordinarily sensitive considerations. This case involves a particularly volatile mix of interests. We are attempting to reconcile a gubernatorial candidate's demand for access to the airwaves with the right of a federally licensed broadcaster to exercise journalistic discretion, all the while keeping our eye on the needs of the public for information. This reconciliation is complicated because the broadcaster is a publicly-financed television network providing the only significant daily coverage of New Jersey news. Our task becomes even more difficult because of the existence of a pervasive federal regulatory scheme governing political broadcasting, carefully structured by Congress and entrusted for enforcement to the FCC with review by the federal courts. These competing considerations, which probe deeply one's perception of the proper relationship of a free press, the judiciary and the public interest, cause different members of this Court to see the issues differently.

I

Two problems merit attention. First, the effect, albeit unintended, of the majority opinion may be to convert NJPTV into a public forum. Not only is that result contrary to the intention of the New Jersey Legislature, but it creates a myriad of problems unforeseen by the majority. Second, regulation of broadcasting under federal law assures fairness for all concerned: NJPTV, political candidates and the people of New Jersey. State laws as interpreted by the majority, however, over-regulate broadcaster discretion and may well be preempted by the federal regulatory scheme.

Before discussing these issues, it may be helpful to state what this case is not. It is not a case in which a candidate was denied all access to the television stations or was precluded from using the airwaves to advance his candidacy. Nor is it a case in which a publicly-financed broadcaster refused to cover a significant political campaign. The majority concedes as much. Furthermore, the question is not whether political broadcasting should be fair. Of course political broadcasting should be fair, and fairness has been assured by the United States Congress and the Federal Communications Commission. Nor is the question whether broadcasting may be regulated. It may, and federal law creates a pervasive scheme of regulation. What this case is about is whether the State should superimpose its control of broadcasting on federal regulation. My answer is in the negative.

The inescapable implication of the majority opinion is that the Legislature entrusted the State, not NJPTV, with editorial discretion in television programming. The further implication is that the State, through its courts, may supervise the editorial process. This dangerous doctrine prompts my disagreement.

II

My fundamental concern with the majority opinion is that it opens a Pandora's box letting loose unforeseen problems about public access to public television stations. Initially, I believe that the majority opinion threatens to convert NJPTV into a public forum. The path to a "public forum" is over uncertain ground enshrouded by the mists of the First Amendment. Recent federal cases, however, demonstrate the reality of the risk of converting a public television station into a public forum. In Muir v. Ala. Educational Tel. Com'n, 656 F.2d 1012 (5 Cir., 1981), the United States Court of Appeals for the Fifth Circuit divided on whether a public television station was a public forum. The majority declined to find a public forum primarily because there was no evidence in the record to support a finding that the government was operating the public station. Id. at 1018, 1018-19 n. 11. The dissent, however, declared flatly that "whenever a state agency supervises broadcast programming, even when it holds the broadcast license, it may not discriminate between points of view on issues of public controversy." Id. at 1027.

In Barnstone v. Univ. of Houston, 514 F. Supp. 670 (S.D.Tex. 1980) (appeal pending, 5 Cir., No. 81-2011), the court concluded that a public television station was a public forum. The court wrote: "a public forum is a place that is (1) controlled by the government and (2) appropriate as a place for the communication of views on issues of political and social significance. . . . There is no question that KUHT-TV is precisely such a place." 514 F. Supp. at 685.

I recognize that the FCC has noted twice, without discussion, that publicly-held noncommercial broadcasters are not subject to the public forum doctrine. See City of New York Municipal Broadcasting System, 56 F.C.C.2d 169, 170 (1975) ("the public forum doctrine is inapplicable to broadcast licensees"); Mississippi Authority for Educational Television, 71 F.C.C.2d 1296, 1312 n. 23 (1979). Furthermore, the United States Supreme Court has not determined the degree of governmental involvement necessary to result in a finding of state action and consequent conversion of a public television station into a public forum. Nonetheless, in Columbia Broadcasting System v. Democratic National Committee ("CBS v. DNC"), 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), three members of the Court concluded that the status of the networks as federal licensees was sufficient governmental action to require at least that "individuals be permitted some opportunity to express their views on public issues over the electronic media." Id. at 201, 93 S.Ct. at 2136 (Brennan and Marshall, JJ., dissenting) (emphasis in original); see id. at 149-150, 93 S.Ct. at 2109-10 (Douglas, J., concurring). Under the constraints of deciding this case, we need not determine whether NJPTV is a public forum. The majority decision, nonetheless, raises the question whether the State could own, operate and regulate NJPTV without converting it into a public forum. One implication of the majority decision is that NJPTV could be "obligated to grant the demands of all citizens to be heard over the air, subject only to reasonable regulations as to 'time, place and manner.'" CBS v. DNC, supra, 412 U.S. at 139, 93 S.Ct. at 2104 (Stewart, J., concurring). I am confident the Legislature never intended that result.

III

The Legislature intended NJPTV to be an autonomous agency free from its control and that of the Governor. Concededly, the Legislature could have created an agency that was an arm of the State. I believe, however, that the Legislature created NJPTV as an independent broadcaster subject to federal, but not state, regulation.

This case makes manifest the inevitability of conflict in dual regulation of political broadcasting. Here, the Appellate Division ruled that NJPTV must include all candidates in the Closer Look part of New Jersey Nightly News. This Court affirmed. The FCC decided, however, that NJPTV need not include all gubernatorial candidates in Closer Look. See In re Ann Klein, Docket No. 8330-B, C5-860 (May 29, 1981). Now, five months later, this Court agrees that NJPTV and the FCC were right all along. That is, this Court now determines that NJPTV could have broadcast the Closer Look with the leading candidates only. These contradictory decisions do not exhaust the contradictions that may occur in the future. What if, last spring, the federal courts had reversed the FCC while this Court had reversed the Appellate Division? In discussing possible permutations one is limited only by the scope of one's imagination.

The abiding problem in the majority decision is that the journalists of NJPTV will exercise their freedom of speech under a judicial sword of Damocles. As Chief Justice Wilentz demonstrates ( ante at 148), NJPTV may abandon in-depth coverage of leading candidates for superficial coverage of all candidates in a crowded field. Thus, judicial intervention may lead to journalistic paralysis. The real losers are the people of New Jersey who may be deprived of information about those gubernatorial candidates in whom they are most interested.

A conflict between federal and state regulation of political broadcasting raises substantial questions of preemption. A state law is preempted where federal regulation is "so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Preemption also occurs whenever a state enactment "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

Congress has enacted a pervasive scheme of regulation of political broadcasting. The part of federal regulation relevant to this case is the fairness doctrine. That doctrine imposes on a broadcaster the obligation "to make a reasonable, good faith judgment on the significance of a particular candidate and on this basis to decide how much coverage should be given to his candidacy and campaign activities. The broadcaster is not required to give as much coverage to 'fringe' party candidates as major party candidates." The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209, 2301 (1978).

This deference to the judgment of the broadcaster is the result of "nearly a half century of unmistakable congressional purpose to maintain — no matter how difficult the task — essentially private broadcast journalism held only broadly accountable to public interest standards." CBS v. DNC, supra, 412 U.S. at 120, 93 S.Ct. at 2095. In this respect, the editorial judgment of a public television station is entitled to the same deference as that of a private broadcaster. Community-Service Broadcasting of Mid-America, Inc. v. F.C.C., 593 F.2d 1102, 1110 (D.C. Cir. 1978) ( en banc). The majority, however, undertakes to supplement, if not supplant, the federal regulatory scheme with its own amorphous test of "fairness". I see no room or need for a state fairness doctrine superimposed on a federal fairness standard designed as part of "a delicately balanced system of regulation intended to serve the interests of all concerned." CBS v. DNC, supra, 412 U.S. at 102, 93 S.Ct. at 2086.

Thus, my disagreement focuses on the rule to be applied, not the application of the rule. I would reverse the judgment of the Appellate Division and dismiss the complaint.

WILENTZ, C.J., and POLLOCK, J., concurring in the result.

For reversal — Chief Justice WILENTZ and Justices PASHMAN, SCHREIBER, HANDLER, POLLOCK and SULLIVAN — 6.

For affirmance — None.