Writers Guild of America, West, Inc. v. Federal Communications Commission

MEMORANDUM OPINION

FERGUSON, District Judge.

INTRODUCTION

More than half a century ago, Secretary of Commerce Herbert Hoover warned that, “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public, nor do I believe that the government should ever be placed in a position of censoring this material.”

1

The plaintiffs in this case have exposed a joint agreement on the part of the three major television networks, the Feder

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al Communications Commission (“FCC”), and the National Association of Broadcasters (“NAB”) to permit one group — the NAB Television Code Review Board — to act as a national board of censors for American television. The plaintiffs have evidenced a successful attempt by the FCC to pressure the networks and the NAB into adopting a programming policy they did not wish to adopt. The plaintiffs have proven that the FCC formulated and imposed new industry policy without giving the public its right to notice and its right to be heard.

The policy involved is well known. It has been called the “family hour,” the “family viewing policy,” the “9:00 rule,” even the “prime time censorship rule.” Specifically, the policy is that “Entertainment programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately preceding hour. In the occasional case when an entertainment program is deemed to be inappropriate for such an audience, advisories should be used to alert viewers.” NAB,

The Television Code

2-3 (18 ed. June, 1975).

Two different lawsuits have been filed to contest the means by which this policy was promoted by the FCC and adopted by the networks and the NAB. The defendants are the same in both cases: (1) The Federal Communications Commission and Commissioners Wiley, Hookes, Lee, Quello, Reid, Robinson and Washburn [the “government defendants”]; (2) American Broadcasting Companies, Inc. (“ABC”), CBS, Inc. (“CBS”), National Broadcasting Company, Inc. (“NBC"), and the National Association of Broadcasters [the “private defendants”]. The plaintiffs in CV 75-3641-F include the Writers Guild of America, West, Inc., Writers Guild of America, East, Inc., Directors Guild of America, Inc., Screen Actors Guild, Inc., Concept Plus II Productions, Four D Productions, Danny Arnold, Allan Burns, Samuel Denoff, Larry Gelbart, Susan Harris, Norman Lear, William Persby, Paul Witt, and Edwin Weinberger (hereinafter “Writers Guild”). The plaintiff in CV 75-3710-F is Tandem Productions, Inc. (“Tandem”). Most of the plaintiffs are creators, writers, and producers for television programming. The shows in which they are involved include “All In The Family,” “Phyllis,” “The Mary Tyler Moore Show,” “Barney Miller," “M*A*S*H,” and “Fay.”

The Writers Guild plaintiffs charge the government defendants with violations of the First Amendment, section 326 of the Federal Communications Act of 1934, and of the Administrative Procedure Act (“APA”). All of the Writers Guild plaintiffs allege that the private defendants have violated the First Amendment; all but Lear charge the defendants with a violation of the Sherman Antitrust Act. Tandem, the producer of “All In The Family,” charges the defendants with the same violations except that it does not include an Administrative Procedure Act count. All plaintiffs seek declaratory relief, injunctive relief, and attorneys’ fees. Tandem asks for damages as well.

Much of the energy associated with this case has been generated because the plaintiffs and defendants disagree about the wisdom of the family viewing policy. In the last analysis, however, this is not the family hour case. The desirability or undesirability of the family viewing policy is not the issue. Rather the question is who should have the right to decide what shall and shall not be broadcast and how and on what basis should these decisions be made. This court will not evaluate the family viewing policy except to say that individual broadcast licensees have the right and the duty to exercise independent judgment in deciding whether or not to follow that policy. This court has no authority to declare an end to the family hour. At the same time, however, neither the FCC nor the NAB has the right to compromise the independent judgments of individual station owner licensees. The court will formulate remedies designed to let those with the right and the duty to make programming decisions make them without improper interference from government or other broadcasters. If the family hour continues, it should continue because

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broadcasters in their independent judgment decide that it is desirable policy, not because of government pressure or NAB regulation. If government intervenes in the future to control entertainment programming on television, it shall do so not in closed-door negotiating sessions but in conformity with legislatively mandated administrative procedures. If the government has any power to regulate such programming, it must be exercised by formal regulation supported by an appropriate administrative record, not by informal pressure accompanied by self-serving and unconvincing denials of responsibility. In short, the family hour may or may not be desirable. Censorship by government or privately created review boards cannot be tolerated.

The legal and factual issues raised by this case and discussed in this opinion are numerous and complicated. Section I of this opinion deals in detail with motions to dismiss which were made by the defendants several months ago. The court denied those motions — at that time only briefly describing its reasons. Section IA rejects the private defendants’ contention that 47 U.S.C. § 405 dictates that the plaintiffs are required to file a petition for rehearing with the FCC before securing relief and the private defendants’ alternative contention that 47 U.S.C. § 402 (a) and 28 U.S.C. § 2842 confer exclusive jurisdiction over the subject matter of this lawsuit to the court of appeals. Section IB rejects the defendants’ contention that the doctrine of exhaustion of remedies is applicable to this case. Section IC discusses the defendants’ contention that the FCC has exclusive jurisdiction over the plaintiffs’ claims. The contention is accepted with respect to section 326 claims in part IC1 and rejected with respect to the APA claims and First Amendment claims in parts IC2 and IC3. Section ID rejects the defendants’ contention that the doctrine of primary jurisdiction has any role to play in this case.

Section II of the opinion contains the factual findings of the court entered after considering the weeks of trial testimony, hundreds of exhibits, and thousands of pages of deposition testimony. It has not been possible to discuss all of the evidence in the record which supports those conclusions. Still less has it been possible to discuss all of the contrary evidence and each of the defendants’ comments with respect to the many items of evidence. Section II, however, does attempt to present the highlights and most significant evidence which has led the court to conclude that the Commission exerted improper pressure, that the networks improperly considered that pressure in making programming judgments, and that the defendants combined in an effort to compromise the independent judgments of broadcast licensees through the medium of the NAB. Accordingly, it first outlines the parties’ general positions concerning the facts and the court’s general conclusions; it then proceeds to enumerate, chronologically, the court’s specific findings. It concludes with a discussion of three separate factual issues which do not lend themselves to chronological consideration.

Section III of the opinion discusses the legal liability issues. Section IIIA considers the liability of the private defendants. Section IIIA1 explains why broadcasters are free to adopt (or reject) the family viewing policy without violating the First Amendment. Section IIIA2 explains why broadcasters are free to adopt (or reject) programming policies even in circumstances where the source of the suggestion is governmental. Section IIIA3 explains that broadcasters who fail to exercise independent program judgments and instead become surrogates in the enforcement of government policy violate the First Amendment. Section IIIA4 explains why the defendants’ agreement to compromise the independent programming judgments of individual licensees violates the First Amendment.

Section IIIB discusses the liability of the government defendants. Section IIIB1 explains that the government defendants are free to present programming suggestions, but are not free to issue threats in order to “persuade” broadcasters. Such threats, it is explained, involve

per se

violations of the

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First Amendment. Moreover the section holds that the FCC cannot use the licensing process (in the absence of issuing valid regulations) to regulate “offensive” material. Section IIIB2 considers the requirements of the Administrative Procedure Act and indicates that the Commission, by using informal pressures which circumvented the public debate and scrutiny concomitant with rulemaking, violated its duties under the Act.

Section IV of the opinion deals with remedial issues. Section IVA discusses requested declaratory relief in connection with the networks’ adoption of the family viewing policy in violation of the First Amendment; Tandem’s request for a court order directing CBS to move “All In The Family” back into the family viewing period is rejected. Section IVB explains the extent to which similar declaratory relief is to be directed against the NAB, while section I VC discusses the necessity for a declaration forbidding the FCC from enforcing the family viewing policy. In section IVD the court rejects plaintiffs’ request for a declaration that any programming suggestions emanating from the FCC would violate the APA and the First Amendment, but indicates that if the FCC attempts to force changes in industry policy, it must comply with APA procedures. Section IVE explains that damages may be awarded against the private defendants, but, as a result of the sovereign immunity doctrine, not against the government defendants. Finally, section IVF discusses plaintiffs’ request for attorneys’ fees and concludes that despite a strong balance of equities in their favor, judicial authority to make such awards has been limited, and no such relief can be granted.

I. JURISDICTIONAL ISSUES

First, the defendants advance a series of arguments calculated to support the conclusion that the district court is an improper forum for this litigation. Two alternative forums are suggested, i.

e.,

the FCC and the court of appeals. When one considers the nature of the issues tendered by the plaintiffs’ complaints, the insubstantiality of the defendants’ suggestions becomes apparent. The plaintiffs’ complaints require the trier of fact to determine the character and extent of the involvement of the FCC (and/or government officials employed by the FCC) in the adoption of the family viewing policy by the networks and the NAB. The plaintiffs contend that the FCC and government officials employed by the FCC pressured broadcasters into adopting the family viewing policy; the FCC strenuously disagrees. Elementary principles of fairness require that this factual dispute should be decided by a trier of fact other than the FCC.

Amos Treat & Co. v. SEC,

113 U.S.App.D.C. 100 , 306 F.2d 260 (1962). Basic principles of judicial administration counsel that disputed factual questions are not decided by courts of appeal.

United Gas Pipe Line Co.

v.

FPC,

86 U.S.App.D.C. 314 , 181 F.2d 796 ,

cert. denied,

340 U.S. 827 , 71 S.Ct. 63 , 95 L.Ed. 607 (1950). Thus it is appropriate to approach the defendants’ suggestion that the law requires one of these two forums with a measure of skepticism. Closer scrutiny of the defendants’ arguments reveals that the jurisdictional scheme created by the Congress is consistent with one’s common sense expectations.

Federal district courts have original jurisdiction of civil actions arising under any Act of Congress regulating commerce ( 28 U.S.C. § 1337 ) and original jurisdiction of civil actions arising under the Constitution and laws of the United States if the prescribed $10,000 jurisdictional amount requirement

2

is satisfied ( 28 U.S.C. § 1331 ). These sections are clearly broad enough to encompass the claims of the plaintiffs.

3

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The question presented, however, is whether or not Congress has in more specific statutory enactments created exceptions which apply to this case.

A.

Exclusive Jurisdiction Under 47 U.S.C. §§ 405 , 402(a), and 28 U.S.C. § 2342 .

The private defendants contend that Congress has created a statutory scheme which dictates that all complaints concerning the Commission’s performance should be brought first to the Commission and then, if disagreement should persist, to the appropriate court of appeals.

4

The basic sections are 47 U.S.C. § 405 , 47 U.S.C. § 402 (a), and 28 U.S.C. § 2342 . Section 405

5

provides in part that after an action has been taken “in any proceeding” by the Commission, any person who was not a party to the proceedings (or any person who relies on a question of fact or law which the Commission has not had an opportunity to consider) must file a petition for rehearing with the Commission before seeking judicial review. Moreover the section provides that the petition for rehearing must be filed within thirty days of the date that public notice is given of the action in question.

Subject to exceptions not relevant here, 47 U.S.C. § 402 (a)

6

provides that proceedings to challenge orders of the Commission shall be brought under the Administrative Orders Review Act.

7

Section two of that act, 28 U.S.C. § 2342

8

grants exclusive jurisdiction to the court of appeals to determine the validity of all final orders of the Commission made reviewable under section 402(a).

Thus from the private defendants’ perspective the district court is an obviously improper forum. The route established by congressional direction is first to the FCC and then to the court of appeal. This route, fashioned as it is to take advantage of the

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Commission’s expertise and to foster a unified approach to the development of communications law is proffered as the established, routine, and exclusive method of challenging orders, decisions, reports, and other actions of the Commission.

9

Established and routine it is.

10

Exclusive it is not.

11

The very terms of the statutes reveal that the petition for rehearing requirement is confined to challenges of actions taken in “proceedings” of the Commission and that the exclusive jurisdiction of the court of appeals is reserved only for the review of “final orders” of the Commission.

Thus two threshold jurisdictional questions are presented: (1) Did the government actions criticized in the plaintiffs’ complaint take place in “proceedings” within the meaning of 47 U.S.C. § 405 ? (2) Are the government actions in question “orders” within the meaning of 47 U.S.C. § 402 (a) or 28 U.S.C. § 2342 ?

1.

Proceedings.

At least, it must be recognized that the activities challenged by the plaintiffs cannot be characterized as the typical proceedings contemplated by statute. The statute contemplates an action of the Commission in the form of a written pronouncement accompanied by public notice.

See

47 C.F.R. §§ 1.4 (b), 1.104(b), 1.106(f);

Microwave Communications, Inc. v. FCC,

169 U.S.App.D.C. 154 , 515 F.2d 385 (1974). Such pronouncements serve to generate the kind of record with which a court of appeal is equipped to deal. Here, however, the plaintiffs do not complain of any formal action of the Commission.

Indeed an important issue presented by the plaintiffs’ allegations is whether or not the Commission has acted at all. The Commission, itself, takes the position that it has not taken any action other than a Report to Congress which recommended that no Commission action be taken. Instead the Commission suggests that the plaintiffs are questioning the informal expressions of view and public speeches of one member of a Commission which cannot act without a quorum.

See WIBC, Inc. v. FCC,

104 U.S.App.D.C. 126 , 259 F.2d 941 ,

cert. denied,

358 U.S. 920 , 79 S.Ct. 290 , 3 L.Ed.2d 239 (1958).

Needless to say, the Commission has not issued a public notice of actions which it denies ever taking. The plaintiffs, of course, do not accept the Commission’s position. They charge continuing, pervasive, extra-legal involvement of the government in broadcaster affairs in actions taken behind closed doors without any regular agency proceeding. Although the plaintiffs and the Commission do not agree as to whether or not the Commission has acted, they are in accord on the proposition that no “proceedings” within the meaning of section 405 have taken place.

The private defendants, however, maintain that if plaintiffs have been adversely affected by any Commission action, they are required to seek rehearing as a condition precedent to judicial review. There is no case authority to support this sweeping construction of section 405, a construction which would appear to read the term “proceeding” out of the statute.

12

The defend

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ants’ reliance on

Citizens Communications Center v. FCC,

145 U.S.App.D.C. 32 , 447 F.2d 1201 (1971) and

Yale Broadcasting Co. v. FCC,

155 U.S.App.D.C. 390 , 478 F.2d 594 ,

cert. denied,

414 U.S. 914 , 94 S.Ct. 211 , 38 L.Ed.2d 152 (1973), is misplaced.

Neither case defined, or needed to define “proceedings,” because petitions for reconsideration had already been filed. In both cases, the Commission (far from denying its actions) had, without affording an opportunity for public input, formally issued an authoritative statement of policy which arguably set new industry guidelines. Because the Commission has not attempted

formal

regulations

13

in this case, any definition of “proceedings” which might have been produced in

Citizens Center

or

Yale

could not be decisive here.

In

Citizens Communications Center,

the plaintiff brought an action in the United States District Court for the District of Columbia in which it asked for an injunction which would have restrained the Commission from promulgating a policy or rule changing the ground rules applicable to comparative broadcast license renewal proceedings unless it first complied with the requirements of section four of the APA, 5 U.S.C. § 553 .

14

The district court dismissed the suit for lack of jurisdiction. Subsequent to the dismissal, as the plaintiff had feared, the Commission issued a policy statement without resort to the procedures outlined in section four.

See

Policy Statement on Comparative Hearings Involving Regular Renewal Applicants, 22 F.C.C.2d 424 (1970).

The Center attacked this Policy Statement on two fronts. It first filed an appeal from the district court’s decision. Second, it filed a petition for rehearing with the Commission and subsequently filed an appeal

inter alia

from the Commission’s memorandum opinion and order denying reconsideration of its Policy Statement. The Center’s two appeals were consolidated (and those two appeals in turn were consolidated with those of other parties). On appeal, the Commission argued that the issues presented by the Policy Statement were not yet ripe for adjudication. The court rejected this contention, noting in part that the “Policy Statement has been administratively considered and reconsidered by the Com

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mission. The issues before us are ‘purely legal.’ ” 447 F.2d at 1205 .

The private defendants attach significance to this brief comment. They lift it from its context and suggest it demonstrates the necessity for filing petitions for reconsideration of all FCC actions. Such a rule of law might be appropriate if it were confined to formal FCC actions. If a party were to complain of an official pronouncement of the Commission, even absent adherence to the procedural requirements for rulemaking, a requirement of a reconsideration petition could further orderly adjudication.

15

But such a rule, had it been announced, would have little bearing on the question of whether section 405 applies to actions of the Commission which have not only been unaccompanied by public notice but which the Commission has denied taking. In fact, however, the court in

Citizens Center

did not speak to the question of whether or not section 405 usurps the jurisdiction of the district court to afford immediate injunctive relief when the FCC has improperly but formally acted without complying with the procedural requirements of section four of the APA. Indeed the court did not even address the question of whether or not injunctive relief was appropriately refused by the district court in the circumstance there presented, one in which it was conceded that no FCC action of any kind had yet taken place. The Center’s appeal from the dismissal in federal court was simply declared to be moot by the court of appeals. Here the plaintiffs allege that the FCC informally regulated without agency proceedings and without public notice. Neither the court of appeals’ position in

Citizens Center

nor the district court’s holding requires that a petition for reconsideration be filed.

Similarly unconvincing is the private defendants’ reliance on

Yale Broadcasting Co.

v.

FCC, supra,

478 F.2d 594 . There the Commission, acting sua sponte, issued a Public Notice which discussed the responsibility of licensees to review the lyrics of records before their broadcast. The notice was prompted by a number of complaints which had been sent to the Commission concerning the playing of records containing lyrics which allegedly “permitted” the use of illegal drugs.

See

28 F.C.C.2d 409 (1971). Numerous parties filed petitions for reconsideration, and the Commission disposed of those petitions in a memorandum opinion and order which sought to clarify and modify the Public Notice. See 31 F.C.C.2d 377 (1971). The parties’ appeal questioned the propriety of both Commission actions. See 478 F.2d at 595 n.1.

The private defendants regard

Yale Broadcasting

as “analogous to the present controversy.” But quite unlike this case the plaintiffs in

Yale

sought to attack an FCC written pronouncement publicly identified as such and publicly noticed. As in

Citizens Communications Center,

the issues were “ ‘purely legal.’ ” 447 F.2d at 1205 . Here again the very existence of FCC action gives rise to a serious factual question and no public notice has been issued. See

Microwave Communications, Inc. v. FCC, supra,

515 F.2d 385 . The court of appeals in

Yale

did not address the question of whether or not the Public Notice was an action taken in a “proceeding” within the meaning of section 405. Since petitions for reconsideration had been filed anyway, there was no occasion to decide whether they were required. Even if it had adopted an expansive interpretation of that term, such an interpretation would lend no support to the defendants’ attempt to read the word “proceeding” out of section 405. No proceeding within the meaning of section 405 is involved here, and thus no petition for reconsideration is required by that section.

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2.

Orders.

This lawsuit is not within the exclusive jurisdiction of the court of appeals. The actions complained of are not “orders” of the Commission within the meaning of 47 U.S.C. § 402 (a) or 28 U.S.C. § 2342 . Preliminarily, it should be recognized that the term “order” in the Administrative Orders Review Act is not the equivalent of that term in the Administrative Procedure Act. Section two of the APA defines “order” to include “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency

in a matter other than rule making

but including licensing . . ..” 5 U.S.C. § 551 (6) (emphasis added). If the term “order” as used in the Administrative Procedure Act were grafted onto the term “order” in the Administrative Orders Review Act, the court of appeals would not have exclusive jurisdiction to consider agency rules and regulations. In order to avoid this unwelcome result the courts in interpreting the Review Act have given the term “order” a more flexible meaning. For example, the District of Columbia Court of Appeals in

Gage v. United States Atomic Energy Commission,

156 U.S.App.D.C. 231 , 479 F.2d 1214, 1218 (1973), dealt with the problem by stating that the language of the Review Act “make[s] no distinction between orders which promulgate rules and orders in adjudicative proceedings.” Accordingly, the courts have considered petitions to review FCC orders promulgating rules and regulations to fall within the scope of 47 U.S.C. § 402 (a).

See, e. g., United States v. Storer Broadcasting,

351 U.S. 192 , 76 S.Ct. 763 , 100 L.Ed. 1081 (1956);

Columbia Broadcasting System, Inc. v. United States,

316 U.S. 407 , 62 S.Ct. 1194 , 86 L.Ed. 1563 (1941);

Mt. Mansfield Television, Inc. v. FCC,

442 F.2d 470 (2d Cir. 1971);

California Citizens Band Association v. United States,

375 F.2d 43 (9th Cir.),

cert. denied,

389 U.S. 844 , 88 S.Ct. 96 , 19 L.Ed.2d 112 (1967).

Nonetheless, although the term “order” in the Administrative Orders Review Act has been interpreted in a manner broader than that used in the Administrative Procedure Act, it never has been interpreted to include all agency actions. At the very least the term “order” implies a formal agency mandate issued at the culmination of some regular agency proceeding. An examination of the related statutes confirms that view.

For example, 47 U.S.C. § 408 provides that “all orders of the Commission, other than orders for the payment of money, shall take effect within such reasonable time, not less than thirty days after

service

of the order . . ..” (emphasis added). 28 U.S.C. § 2344 requires that upon “the

entry

of a final order reviewable under this chapter, the agency shall promptly give

notice

thereof by service or publication in accordance with its rules.” Moreover the same section indicates that the petition to review filed in the court of appeals “shall contain a concise statement of the nature of the

proceedings

as to which review is sought . . ..” (emphasis added).

See also

47 U.S.C. § 405 . Clearly the statutory scheme envisions a written order entered on the FCC docket with appropriate notice to the parties.

Cf. FPC v. Metropolitan Edison Co.,

304 U.S. 375 , 58 S.Ct. 963 , 82 L.Ed. 1408 (1938). Indeed 47 U.S.C. § 154 (j) specifically requires that, “Every . . . official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party interested.” Here the plaintiffs complain of informal actions of the Commission not entered of record, not served upon the parties, and taken wholly outside agency proceedings. Nothing in the language of the relevant statutes even remotely suggests that these activities are “final orders” of the Commission within the meaning of section 2342.

Nor does the case law suggest a different result. The leading case is

United Gas Pipe Line v. FPC, supra,

86 U.S.App.D.C. 314 , 181 F.2d 796 . There the court of appeals was asked to review an order of the Federal Power Commission. Recognizing the fact that 15 U.S.C. § 717r(b) granted a party aggrieved by an “order” of the Federal

*1080

Power Commission the right to seek review in the court of appeals, and without denying the possibility that the petitioner was an aggrieved party, the court of appeals denied review. The court stated that review in the court of appeals presupposed the need for “a record fully encompassing the issues.” 181 F.2d at 799 . In the absence of such a record, appellate courts were recognized to have “no intelligible basis for decision” and were without “authority to directly review the Commission’s action.”

Id.

And although the

United

requirement of an actual hearing has been questioned by many courts (see, e.

g., Deutsche Lufthansa Aktiengesellschaft v. CAB,

156 U.S.App.D.C. 191 , 479 F.2d 912, 915-16 (1973)), the requirement of the need of a record for review has survived. Indeed, “It is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone.”

Id.

at 916. Thus in cases where the record is unchallenged, where the issues are legal and not factual, and where notice has been provided to the parties the court of appeals has held that it has jurisdiction despite the absence of an administrative hearing.

Id.

at 915-16. Here, however, there is no “record”; there are material issues of fact; no notice has been given. None of the indicia of appellate jurisdiction is present.

Even if section 2342 were somehow deemed to confer jurisdiction upon the court of appeals as to the alleged actions of the FCC, that jurisdiction would not embrace the entirety of this action. The First Amendment claims of the plaintiffs do not necessitate a demonstration of FCC action. A demonstration of FCC action would be one way of meeting the First Amendment state action requirement, it is not the only way. For example, the plaintiffs contend that Chairman Wiley, acting under color of his office, improperly interfered with programming decisions of the broadcasters. These allegations are sufficient to meet the state action requirement whether or not his actions were approved by other Commissioners and whether or not his actions might be deemed “agency action” for purposes of the Administrative Procedure Act or final orders of an administrative agency for purposes of the Administrative Orders Review Act.

Moreover nothing in section 2342 could conceivably be deemed to cede jurisdiction to the court of appeals over the plaintiffs’ action against the private defendants. Since the statute is specifically and exclusively designed to establish a review procedure for agency orders, there is no method by which the plaintiffs could join the private parties as defendants in a review proceeding before the court of appeals. To be sure, there is a procedure by which interested parties may intervene ( 28 U.S.C. § 2348 ), but the court of appeals under section 2342 has no power to hear a case by private plaintiffs against private defendants and no authority under 28 U.S.C. § 2349 (a) to do anything more than enter a “judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.”

Id.

The initial power to adjudicate such disputes between private litigants and to enter appropriate relief is reserved to the district courts.

16

B.

Exhaustion of Remedies.

The defendants contend that even if 47 U.S.C. § 405 and 28 U.S.C. § 2342 are not applicable to the circumstances of this case, the general doctrine of exhaustion of remedies should be applied to force the plaintiffs to file their complaints with the Commission. Specifically they point: (1) to procedures which permit the Commission on the motion of a party to “issue a declaratory order to terminate a controversy or remove uncertainty” ( 5 U.S.C. § 554 (e); 47 C.F.R.

*1081

§ 1.2); (2) to procedures which permit persons to petition for “issuance, amendment or repeal of a rule or regulation” ( 47 C.F.R. § 1.401 ); (3) to procedures which permit persons to file informal requests for Commission action ( 47 C.F.R. § 1.41 ). Thus the defendants invoke “the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.”

Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41, 50-51 , 58 S.Ct. 459, 463 , 82 L.Ed. 638 (1938);

McKart v. United States,

395 U.S. 185, 193-94 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969);

FCC v. Schreiber,

381 U.S. 279, 296-97 , 85 S.Ct. 1459 , 14 L.Ed.2d 383 (1965).

The FCC, for example, states that “in total disregard of principles of exhaustion of remedies, plaintiffs, to date, have never attempted to bring their complaint to the attention of the Commission in the normal administrative mode, prior to instituting this suit.” Essentially the argument boils down to this: The plaintiffs, who allege that the Commission and its staff sought through extra-legal channels to impose an unconstitutional scheme of censorship in direct defiance of established procedures, statutory commands, and constitutional limitations, must continue to suffer irreparable injury while going through the ritualistic exercise of asking the Commission to admit guilt which it strenuously denies.

Ironically, the Commission’s papers on file with this court (the very papers which argue for exhaustion of remedies) demonstrate that it has predetermined the issues adversely to the plaintiffs. It forcefully argues in its papers that there has been no agency action of any kind and no violation of section 326 or of the First Amendment by the Commission or any of its members. Exhaustion of remedies is not required when the administrative agency involved is biased

(Gibson v. Berryhill,

411 U.S. 564 , 575 n. 14, 93 S.Ct. 1689 , 36 L.Ed.2d 488 (1973);

Steele v. Louisville & Nashville R. R. Co.,

323 U.S. 192, 206 , 65 S.Ct. 226 , 89 L.Ed. 173 (1944);

Fitzgerald v. Hampton,

152 U.S.App.D.C. 1 , 467 F.2d 755, 768-69 (1972);

Amos Treat & Co. v. SEC, supra,

306 F.2d at 266-67 ;

17

or where exhaustion would be futile.

Houghton v. Shafer,

392 U.S. 639, 640 , 88 S.Ct. 2119 , 20 L.Ed.2d 1319 (1968);

Natural Resources Defense Council, Inc. v. Train,

166 U.S.App.D.C. 312 , 510 F.2d 692, 703 (1974);

Wolff v. Selective Service Local Board No. 16,

372 F.2d 817, 825 (2d Cir. 1967);

Western International Hotels v. Tahoe Regional Planning Agency,

387 F.Supp. 429, 433-34 (D.Nev.1975).

18

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The private defendants suggest, however, that the apparent futility of the remedy before the FCC is belied by the availability of the court of appeal review procedure. The suggestion of the private defendants is twofold: first, that the court of appeals could force the FCC to give the plaintiffs’ claim appropriate consideration; second, that even if remedies with the FCC were .inadequate, the court of appeals would afford adequate consideration to the plaintiffs’ claims. The parties’ first point overlooks the underlying cause of the remedy’s inadequacy. The inadequacy results not from any venality on the part of the Commission but rather because the Commission is understandably biased. Vigorous advocates inevitably are. The court of appeals cannot be expected to transform admittedly interested parties into impartial observers.

19

The parties’ second point puts the cart before the horse. Wherever this lawsuit should start, and whatever its outcome in the initial forum, it can proceed at least to the court of appeals.

Compare

28 U.S.C. § 2342

with

28 U.S.C. § 1291 . The question is what kind of record the court of appeals will review. For the reasons stated previously, a record with findings of fact entered by the FCC would be fatally defective. The effectiveness of any remedy in the court of appeals presupposes that material issues of fact first be presented to an impartial trier of fact.

20

Finally, even if the problems of bias and futility were not involved, exhaustion would not be required because that doctrine is inapplicable whén an agency has taken an action beyond its jurisdiction and thereby imposed an immediate burden on the exercise of important rights. As Professor Davis observes, “No court requires exhaustion when exhaustion will involve irreparable injury and when the agency is palpably without jurisdiction.” 3 K. Davis,

Administrative Law Treatise

§ 20.01, at 56 (1958).

See, e. g., Leedom v. Kyne,

358 U.S. 184 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958);

Skinner & Eddy Corp. v. United States,

249 U.S. 557 , 39 S.Ct. 375 , 63 L.Ed. 772 (1919);

Dragna v. Landon,

209 F.2d 26 (9th Cir. 1953);

Ashland Oil Co. v. Federal Energy Administration,

389 F.Supp. 1119 (N.D.Cal.1975);

A. E. Staley Manufacturing Co. v. United States,

310 F.Supp. 485 (D.Minn.1970).

This does not mean, of course, that orderly administrative procedures may be bypassed automatically merely because the plaintiff claims that a particular administrative action is unconstitutional or otherwise in excess of its statutory powers.

See, e. g., Boire v. Greyhound Corp.,

376 U.S. 473 , 84 S.Ct. 894 , 11 L.Ed.2d 849 (1964);

Aircraft & Diesel Equipment Corp. v.

*1083

Hirsch,

331 U.S. 752 , 67 S.Ct. 1493 , 91 L.Ed. 1796 (1947);

Myers v. Bethlehem Shipbuilding Corp., supra,

303 U.S. 41 , 58 S.Ct. 459 , 82 L.Ed. 638 ;

Boire v. Miami Herald Publishing Co.,

343 F.2d 17 (5th Cir.),

cert. denied,

382 U.S. 824 , 86 S.Ct. 56 , 15 L.Ed.2d 70 (1965).

21

The case law though marked by overgeneralization can be reconciled as Davis observes by the application of three factors: “[E]xtent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question of jurisdiction.” 3 K. Davis,

supra,

§ 20.03 at 69. In fact, the Ninth Circuit Court of Appeals has specifically adopted Professor Davis’ formulation commending it as one that “is as complete and workable as can be stated.”

Lone Star Cement Corp. v. FTC,

339 F.2d 505 , 510 (1964).

First, as to the extent of injury, the actions complained of place a continuing and irreparable burden on First Amendment rights. As the plaintiffs put it, “Today’s censorship is not caused by tomorrow’s tolerance.” There is no reason to believe that swift agency relief is likely. Even more important there is no doubt that the Commission is palpably without jurisdiction to interfere with broadcaster decisionmaking in the manner complained of. The FCC does not even purport to possess the right to do what the plaintiffs contend they have done. The FCC simply insists that it has not interfered with broadcaster decisionmaking. Resolving the conflict requires impartial adjudication, not specialized understanding. In short, each of the operative factors points to one conclusion: exhaustion is not necessary.

The defendants point to the fact that the Commission has in a myriad of cases considered constitutional questions about broadcaster conduct and Commission conduct. To the extent that agreement is directed to the judicially created doctrine of exhaustion, it is irrelevant. The point is not that the Commission under the exhaustion doctrine cannot hear constitutional questions. The point is that in the absence of an exclusive statutory mechanism the courts have equity power to enjoin ultra vires Commission actions that threaten irreparable injury. To the extent that argument is directed to the proposition that remedies with the Commission are exclusive, it is discussed in section IC1,

infra.

The private defendants further imply that even if exhaustion of remedies with respect to the plaintiffs’ claims against the government defendants were not required, exhaustion of remedies should be imposed as to the plaintiffs’ claims against the broadcasters. Assuming

arguendo

that the doctrine' of exhaustion applies to the plaintiffs’ constitutional claims against the private defendants, there is no adequate remedy to exhaust. The plaintiffs’ primary claims against the broadcasters depend upon the same factual premises as their claims against the FCC. To the extent that the plaintiffs’ remedies against the FCC are inadequate, they are equally inadequate against the broadcasters.

As the Supreme Court emphasized in

McKart v. United States, supra,

395 U.S. at 193 , 89 S.Ct. at 1662 , the doctrine of exhaustion of remedies is “like most judicial doctrines subject to numerous exceptions.”

*1084

It comes “into effect only if the remedy . . . is adequate to protect the asserted claim.” L. Jaffe,

Judicial Control of Administrative Agencies

426 (1965). Here, since the remedy is inadequate, the doctrine does not come into effect.

C.

Exclusive Jurisdiction: Revisited.

The defendants (government and private) take the argument one step further. Running through their briefs is the notion that whether or not the traditional exceptions to the doctrine of exhaustion of remedies apply (i.

e.,

independent of whether or not there is an adequate remedy), the plaintiffs are statutorily required to exhaust remedies with the FCC. Essentially the position is that even if sections 47 U.S.C. § 405 , 47 U.S.C. § 402 (a) and 28 U.S.C. § 2342 have not by their terms evidenced a congressional intention to make the FCC the exclusive fact finder for any matter involving the television industry, the comprehensive character of the statutory scheme and the case law interpreting that scheme has. Thus the argument goes not to timing, but to power. In this connection it is necessary to distinguish between the three causes of action now at issue.

22

1.

Section 826 Claim.

The plaintiffs attempt to state a private cause of action against the Commission and its commissioners under section 326 of the Federal Communications Act of 1934. Courts which have treated private claims against broadcasters founded upon the Communications Act have uniformly concluded that the Act does not give rise to a private cause of action in the federal courts.

Daly v. Columbia Broadcasting System, Inc.,

309 F.2d 83, 86 (7th Cir. 1962);

Massachusetts Universalist Convention

v.

Hildreth & Rogers Co.,

183 F.2d 497, 500 (1st Cir. 1950);

McIntire v. Wm. Penn Broadcasting Co.,

151 F.2d 597, 600 (3d Cir. 1945);

Post v. Payton,

323 F.Supp. 799 (E.D.N.Y.1971);

Ackerman v. Columbia Broadcasting System, Inc.,

301 F.Supp. 628, 631 (S.D.N.Y.1969);

Gordon v. National Broadcasting Co.,

287 F.Supp. 452, 455 (S.D.N.Y.1968).

23

The parties have not cited any case in which a plaintiff has attempted to state a section 326 private cause of action, but the cases which have disputed the existence of a private cause of action under various sections of the Act have not based their analysis on the specific sections but on an analysis of the Act as a whole. Thus the Supreme Court stated in

Scripps-Howard Radio v. FCC,

316 U.S. 4, 14 , 62 S.Ct. 875, 882 , 86 L.Ed. 1229 (1942), “The Communications Act of 1934 did not create new private rights. The purpose of the Act was to protect the public interest in communications.” In this area, the Commission is the “primary and exclusive forum”

(Ackerman v. Columbia Broadcasting System, Inc., supra,

301 F.Supp. at 631 ) to initiate complaints based upon the Act. The point, therefore, is not that the plaintiffs must exhaust administrative remedies before coming to this court. The point is that the Act countenances no private cause of action whether or not administrative remedies have been exhausted.

Daly v. Columbia Broadcasting, supra,

309 F.2d at 86 ;

Morrisseau v. Mt. Mansfield Television, Inc., supra,

380 F.Supp. at 515.

This does not mean, however, that abuses of the Commission are immune from scrutiny. As discussed

supra,

(see section IA), the court of appeals has the power to scrutinize final orders of the Commission. As discussed

infra,

the Administrative Pro

*1085

cedure Act

24

and the First Amendment give rise to private causes of action against the Commission in the federal courts.

2.

Administrative Procedure Act Claim.

Section 10(a) of the APA, 5 U.S.C. § 702 , provides that “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The Commission insists that judicial review is confined to the court of appeals and supports that view by reference to section 10(b) of the Act, 5 U.S.C. § 703 , “The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute . . ..” Conveniently the Commission does not refer to the qualifying language of the section which reads,

“or, in the absence or inadequacy thereof,

any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.” (emphasis added). As discussed in section IA, the Administrative Orders Review Act and 47 U.S.C. § 402 (a) confer exclusive jurisdiction upon the court of appeals to review final orders of the Commission. The Commission apparently is arguing that if Commission activities do not amount to a final order, they cannot be considered agency action. Indeed the Commission at one point specifically contends that, “If the family hour were to be considered a rule or

other final agency action

under the APA, then exclusive judicial review would lie in the Court of Appeals.” (emphasis added and capitals deleted). This construction of the Administrative Procedure Act is at odds with its language, its legislative history and the case law interpreting it.

tli)] Section two of the APA, 5 U.S.C. § 551 (13), defines agency action in sweeping terms. It includes “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” Indeed both the House and Senate committees in recommending the bill observed that the definition of agency action was specifically designed “to assure the complete coverage of every form of agency power, proceeding, action, or inaction.” S.Rep.No.752, 79th Cong., 1st Sess. 12 (1945); H.Rep.No.1980, 79th Cong., 2d Sess. 21 (1946), U.S.Code Cong.Serv.1946, p. 1195. To accept the Commission’s suggestion that only “final orders” are reviewable in the courts would directly fly in the face of the purpose of the APA stated again by both the House and Senate committees responsible for the legislation;

i. e.,

the act is “designed to afford a remedy for every legal wrong.” S.Rep.No.752, 79th Cong., 1st Sess. 7 (1945); H.Rep.No.1980, 79th Cong., 2d Sess. 17 (1946).

Thus the Supreme Court stated in

Abbott Laboratories v. Gardner,

387 U.S. 136, 140-41 , 87 S.Ct. 1507, 1511 , 18 L.Ed.2d 681 (1967) that

The Administrative Procedure Act provides specifically not only for review of “[ajgency action made reviewable by statute” but also for review of “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. § 704 . The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s “generous review provisions” must be given a “hospitable” interpretation.

Even more specifically in Bucks

County Cable TV, Inc. v. United States,

299 F.Supp. 1325, 1333 (E.D.Pa.1969),

rev’d on other grounds,

427 F.2d 438 (3d Cir.),

cert. denied,

*1086

400 U.S. 831 , 91 S.Ct. 62 , 27 L.Ed.2d 61 (1970) the court ruled:

[T]he Administrative Procedure Act supplements the special statutory review procedures for final orders of the various agencies. Its review provisions utilize traditional equity actions for agency ac-' tion not amounting to a final order, but which nonetheless directly affects plaintiff’s rights.

See also Utah Fuel Co. v. National Bituminous Coal Commission,

306 U.S. 56, 59-60 , 59 S.Ct. 409 , 83 L.Ed. 483 (1939);

Deering Milliken, Inc. v. Johnston,

295 F.2d 856, 865 (4th Cir. 1961);

Jefferson Standard Broadcasting Co. v. FCC,

297 F.Supp. 784, 787-89 (W.D.N.C.1969); 3 K. Davis,

supra,

§ 23.03 at 304; L. Jaffe,

Judicial Control of Administrative Action

358-59 (1965).

The Commission, of course, is correct when it asserts that the actions of a single commissioner do not amount to agency action within the meaning of the APA. The Commission’s contentions in that regard are discussed in section II 135. But to the extent the Commission attempts to suggest that the term “agency action” is synonymous with final orders, its position is rejected.

25

3.

First Amendment Claims.

The defendants’ position that the FCC has exclusive jurisdiction to entertain the plaintiffs’ constitutional claims presents an entirely different order of question. Although the parties are in dispute as to whether or not the First Amendment gives rise to a private cause of action for damages and whether or not the First Amendment affords a basis for declaratory or injunctive relief under the circumstances of this case, no one doubts that in an appropriate case that the First Amendment will support a private cause of action for declaratory and injunctive relief. “The inherent federal judicial power to enjoin threatened or continued violation of constitutional rights is beyond question.”

Ackerman v. Columbia Broadcasting System, Inc., supra,

301 F.Supp. at 633 ,

citing Bell v. Hood,

327 U.S. 678, 684 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946). Most courts presented with constitutional claims against broadcasters have been willing to consider them on the merits without reference to the doctrine of exhaustion of remedies.

See Massachusetts Universalist Convention v. Hildreth & Rogers Co., supra,

183 F.2d at 501 ;

McIntire v. Wm. Penn Broadcasting Co., supra,

151 F.2d at 601 ;

Post v. Payton, supra,

323 F.Supp. at 803-04 ;

Ackerman v. Columbia Broadcasting System, Inc., supra,

301 F.Supp. at 633-34 .

But see Maguire v. Post Newsweek Stations,

24 P&F Radio Reg.2d 2094 (D.C. Cir. 1972).

The question of whether or not the courts should resort to the exhaustion doctrine (or the doctrine of primary jurisdiction discussed in section ID

infra)

when considering a plaintiff’s constitutional claim is ordinarily academic. Since most courts have ruled that broadcaster action is not

per se

the equivalent of government action for First Amendment purposes

26

the question of whether or not the plaintiffs have exhausted claims dependent on this very theory has ordinarily been bereft of practical significance.

See, e. g., Massachusetts Universalist Convention v. Hildreth & Rogers Co., supra,

183 F.2d at 501 ;

McIntire v.

Wm.

Penn Broadcasting Co., supra,

151 F.2d at 601 ;

Post v. Payton, supra,

323 F.Supp. at 803 . Nonetheless most courts which have proceeded to decide the constitutional merits without invoking the exhaustion doctrine have so proceeded while simultaneously referring Communications Act claims to the Commission. Since these courts do not require exhaustion as even a preliminary step to judicial consideration of their claim,

a fortiori

they do not believe

*1087

that the FCC possesses exclusive jurisdiction to decide such claims. They obviously assume that the Communications Act did not

sub silentio

divest the courts of their traditional power to decide constitutional issues. But the defendants apparently believe that those cases which have assumed jurisdiction over constitutional claims and decided them on the merits have gone too far. They suggest that the proper approach was followed by the court in

Maguire v. Post Newsweek Stations, supra,

24 P&F Radio Reg.2d 2094 and imply that that case holds that exhaustion of remedies must be pursued with respect to constitutional claims involving the broadcasting industry whether or not those remedies are adequate.

In

Maguire,

a group of parents brought an action in the district court seeking declaratory and injunctive relief against broadcasting of the television program “Wild, Wild West” before 9:00 p. m. The parents sought to assert the Fifth Amendment rights of their children to be free from mental harm thought to be caused by exposure to the violence depicted in the program. The district court dismissed the suit

inter alia

for failure to exhaust administrative remedies, and the District of Columbia Court of Appeals affirmed in a brief per curiam opinion that was not officially reported. The opinion noted that the Commission had regular procedures for examining viewer complaints about television programming and that a petition for rule-making on the subject of television violence was then before the Commission. Accordingly, the court required exhaustion of administrative remedies. But

Maguire

in no wise can be said to stand for the proposition that “if there is any power or authority to consider the issues raised in the complaint, it resides with the FCC.” Rather it stands for what it says: “[T]he mere existence of a putatively valid statutory or constitutional claim [does not justify] bypassing orderly administrative procedures.” 24 P&F Radio Reg.2d at 2095. Here the plaintiffs’ position does not depend upon the notion that the mere existence of a constitutional claim justifies bypassing remedies with the FCC. Rather they insist that the Communications Act does not divest the courts of the power to hear First Amendment claims and that the remedies which the defendant would have them exhaust are palpably inadequate in the circumstances of this case. Thus it is unnecessary to decide here whether the approach taken in

Maguire

is appropriate. It is sufficient to observe that

Maguire

did not consider a case in which administrative remedies were obviously inadequate.

The private defendants’ reliance upon

Allen B. Dumont Laboratories v. Carroll,

184 F.2d 153 (3d Cir. 1950),

cert. denied,

340 U.S. 929 , 71 S.Ct. 490 , 95 L.Ed. 670 (1951), is even less well taken. That case ruled that an attempt by the State of Pennsylvania through its State Board of Censors to regulate movies shown on Pennsylvania television was invalid because the field of television regulation had been preempted by Congress and was no longer open to the states. Moreover the district court ruled as an alternative basis for decision that the regulation was unconstitutional on commerce grounds. 86 F.Supp. 813, 816 (E.D.Pa.1949). All of this was done without referring anything to the FCC. If the defendants’ position was correct, the

Dumont

courts should have declared an absence of judicial jurisdiction and referred the case to the FCC. Instead

Dumont can be

appropriately cited in support of the contention that the courts retain the power to free broadcasters from illegal restraints upon their freedom to decide what shall and shall not be broadcast.

This does not mean that the FCC could be sued in the district courts with respect to orders which an aggrieved party claims are in violation of the First Amendment. As discussed previously, the power of review of the Commission’s final orders is confined to the court of appeals.

27

Since an agency

*1088

action not amounting to a final order is already reviewable (in appropriate circumstances) in the district courts under the Administrative Procedure Act (see section IC2), it would hardly make sense to hold that a First Amendment cause of action has somehow been barred.. Nor does the holding that broadcasters or other individuals may be sued in district courts for First Amendment violations open a pandora’s box. If

Maguire

is correct, the doctrine of exhaustion of remedies will apply in most cases. Even if

Maguire

were wrong, First Amendment defenses

28

would keep the floodgates closed just as easily as any sweeping new theory asserting lack of power in the federal judiciary.

Nor is the question merely one of judicial versus administrative power. If the defendants were correct in their assumption that the FCC possessed exclusive power to deal with questions affecting the broadcasting industry, there would be no way for plaintiffs injured by violations of their First Amendment rights to receive compensation for their losses, inasmuch as that agency has no power to award damages for losses. The defendants respond by contending that there is no such thing as a First Amendment cause of action for damages, and, therefore, maintain that Tandem’s claim for damages is without any legal foundation. Since the argument also is related to the question of whether or not the FCC has exclusive jurisdiction, it will be treated here.

29

The starting point, of course, is

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). There the Supreme Court held that the Fourth Amendment would support a private cause of action for damages. The defendants rely upon the handful of cases which have attempted to confine

Bivens

to its Fourth Amendment context.

See, e. g., Archuleta v. Callaway,

385 F.Supp. 384, 388 (D.Colo.1974);

Moore

v.

Schlesinger,

384 F.Supp. 163, 165 (D.Colo.1974);

Smothers v. Columbia Broadcasting System, Inc.,

351 F.Supp. 622, 625-26 (C.D.Cal.1972) (dictum);

Davidson v. Kane,

337 F.Supp. 922, 924 (E.D.Va.1972).

In

Bivens ,

the primary issue of concern to the Court was whether or not the Fourth Amendment created personal federal rights independent of those created by state law. The Court concluded that “[T]he Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen.” 403 U.S. at 392 , 91 S.Ct. at 2002. Having determined that the Fourth Amendment creates personal federal rights, it was not difficult to conclude that the remedy of damages was available. As the Court put it, “That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.”

Id.

at 395, 91 S.Ct. at 2004.

Similarly there can be no doubt that the First Amendment creates personal federal rights. As the Supreme Court stated in

Schneider v. Irvington,

308 U.S. 147, 161 , 60 S.Ct. 146, 150 , 84 L.Ed. 155 (1939), “This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not

*1089

lightly used.” Since damages are the ordinary remedy for the invasion of personal interests in liberty and since the First Amendment creates personal interests in liberty, it follows that the First Amendment creates a private cause of action for damages. Indeed most cases which have treated the question have recognized that in light of

Bivens

there is “no principled basis for limiting the availability of damages to cases involving interests protected by the fourth amendment.” Note, “Damage Remedies Against Municipalities for Constitutional Violations,” 89

Harv.L.Rev.

922, 934 (1976);

Paton v. La Prade,

524 F.2d 862 (3d Cir. 1975);

States Marine Lines, Inc. v. Shultz,

498 F.2d 1146 (4th Cir. 1974);

United States ex rel. Moore v. Koelzer,

457 F.2d 892 (3d Cir. 1972);

Bethea v. Reid,

445 F.2d 1163 (3d Cir. 1971),

cert. denied,

404 U.S. 1061 , 92 S.Ct. 747 , 30 L.Ed.2d 749 (1972);

Patmore v. Carlson,

392 F.Supp. 737 (E.D.Ill.1975);

Revis

v.

Laird,

391 F.Supp. 1133 (E.D.Cal.1975);

Gardels v. Murphy,

377 F.Supp. 1389 (N.D.Ill.1974);

Butler v. United States,

365 F.Supp. 1035 (D.Hawaii 1973);

Scheunemann v. United States,

358 F.Supp. 875 (N.D.Ill.1973).

See Hostrap v. Board of Junior College District No. 515,

523 F.2d 569 (7th Cir. 1975).

The defendants insist, however, that in this case, unlike

Bivens ,

there are “special factors counseling hesitation.” 403 U.S. at 396 , 91 S.Ct. 1999 . Specifically they argue that in the cases extending

Bivens

the federal employees “interfered, almost physically, with the plaintiff in a direct and personal manner.” Aside from the fact that this imaginative distinction cannot begin to account for the facts of all the cases

(see, e. g., Paton v. La Prade, supra,

524 F.2d 862 ) (FBI mail surveillance gives rise to First Amendment claim),

United States ex rel. Moore v. Koelzer, supra,

457 F.2d 892 (use of false testimony and falsification of document offered in evidence against plaintiff in prior criminal prosecution)), there is nothing in the cases or in policy to suggest that such a distinction has ever been thought to be or should have been thought to be dispositive. Instead the cases here properly understood

Bivens

to amount to nothing less than a “sweeping approbation of constitutionally-based causes of action.”

Brault v. Town of Milton,

527 F.2d 730, 734 (2d Cir.),

vacated on other grounds, id.

at 736 (1975) (en banc).

The preceding, of course, does not establish that the plaintiffs are entitled to collect damages in this case. Rather it serves to illustrate that the proper forum for deciding whether or not damages should be awarded is the district court. The FCC has no power to award damages and this court cannot assume that the Congress has by subtle implication denied aggrieved plaintiffs the right to collect damages for First Amendment violations. If the use of the damage remedy would threaten defendants with crushing liability, the appropriate response would be to intelligently limit the remedy

(see, e. g., Gertz v. Robert Welch, Inc.,

418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974)), not to abrogate it altogether.

Therefore the court concludes that the FCC is the exclusive forum for alleged violations of the Federal Communications Act. It is not the exclusive forum for alleged violations of the APA or the First Amendment.

D.

Primary Jurisdiction.

Alternatively the defendants invoke the doctrine of

primary

jurisdiction. That doctrine, like the doctrine of exhaustion of remedies, “ ‘is concerned with promoting proper relationships between the courts and administrative agencies charged with.particular regulatory duties.’ ”

Nader v. Allegheny Airlines, Inc.,

426 U.S. 290 , 96 S.Ct. 1978 , 48 L.Ed.2d 643, 1987 (1976),

quoting United States v. Western Pacific R.R. Co.,

352 U.S. 59, 63 , 77 S.Ct. 161 , 1 L.Ed.2d 126 (1956).

The doctrine of primary jurisdiction, however, is to be distinguished from the doctrine of exhaustion of remedies. If a plaintiff’s claim should have been initially tendered to an administrative agency, the doctrine of exhaustion of remedies applies. If, on the other hand, a plaintiff’s claim is cognizable in the courts as an original mat

*1090

ter, but raises issues the resolution of which requires the special expertise of an administrative agency, the doctrine of primary jurisdiction applies. In the latter case, the judicial process is suspended pending referral of the issues to the administrative body for its views.

United States v. Western Pacific R.R. Co., supra,

352 U.S. at 64 , 77 S.Ct. 161 ;

General American Tank Car Corp. v. El Dorado Terminal Co.,

308 U.S. 422, 433 , 60 S.Ct. 325 , 84 L.Ed. 361 (1940).

The classic summary of the doctrine of primary jurisdiction is contained in

Far East Conference v. United States,

342 U.S. 570, 574-75 , 72 S.Ct. 492, 494 , 96 L.Ed. 576 (1952):

[I]n cases raising

issues of fact not within the conventional experience of judges or

cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure, (emphasis added).

Essentially, then, the doctrine is designed to secure uniformity of decisionmaking with respect to regulated industries

(Texas & Pacific Ry. Co. v. Abiline Cotton Oil Co.,

204 U.S. 426 , 27 S.Ct. 350 , 51 L.Ed. 553 (1907)) and to exploit the expertise of administrative agencies in factual areas ordinarily not considered by the courts.

Nader v. Allegheny Airlines, Inc., supra,

96 S.Ct. at 1987 ;

United States v. Radio Corporation of America,

358 U.S. 334, 346-52 , 79 S.Ct. 457 , 3 L.Ed.2d 354 (1959);

United States

v.

Western Pacific R.R. Co., supra,

352 U.S. at 64 , 77 S.Ct. 161 .

The defendants insist that the FCC's recognized expertise in balancing the delicate First Amendment considerations involved in the television industry

(see, e. g., CBS v. Democratic National Committee, supra,

412 U.S. at 102, 93 S.Ct. 2080 ) mandates an initial determination by the Commission. This argument ignores the nature of the factual questions involved and the position already taken by the Commission. As discussed previously, nothing would be served by having the FCC determine the factual questions surrounding the adoption of the family viewing policy. The degree of FCC involvement, the extent to which it permeates the family viewing policy with state action sufficient to involve the First Amendment, and the remedies appropriate if a violation has occurred, are all topics peculiarly unsuited to impartial FCC scrutiny; indeed, the FCC possesses no special expertise in discerning state action or in fashioning remedies. On the other hand, the competence of the federal courts to define constitutional rights and to fashion remedies for their protection is a basic premise of common law jurisprudence.

See Bivens v. Six Unknown Federal Narcotics Agents, supra,

403 U.S. at 395-96, 408-09 , 91 S.Ct. 1999 (Harlan, J., concurring); Note, “Damage Remedies Against Municipalities for Constitutional Violations,” 89

Harv.L. Rev.

922, 933-34 n.64 (1976). In fact, the defendants are conspicuously silent on the matter of which factual questions the FCC should preliminarily decide. Moreover the First Amendment legal questions raised either involve no special FCC expertise

(e. g.,

state action and remedies) or are not in controversy (e.

g.,

the lack of FCC power to censor protected material). They are simply not the kind of questions which need “be considered by the Commission in the interests of a uniform and expert administration of the regulatory scheme . . ..”

United States v. Western Pacific R.R. Co., supra,

352 U.S. at 65 , 77 S.Ct. at 166 .

Moreover, as discussed previously, the Commission’s beliefs as to the merits of the plaintiffs’ claims are not shrouded in secret. The courts have long made clear

*1091

that resort to the doctrine of primary jurisdiction is unwarranted when the agency has “made its position clear on the issue sought to be referred to the agency,”

(Agar Food Products Co. v. Chicago River and Indian R.R. Co.,

358 F.Supp. 1312, 1313 (N.D.Ill.1973) or “has clarified the factors underlying it”

(United States v. Western Pacific R.R. Co., supra,

352 U.S. at 69 , 77 S.Ct. at 168 ). Moreover the FCC is a party to the action and, therefore, is available to present its views.

Cf. Rosado v. Wyman,

397 U.S. 397, 407 , 90 S.Ct. 1207 , 25 L.Ed.2d 442 (1970). The private defendants cite a number of cases involving the Commission in which the courts are said to have “honored the FCC’s primary jurisdiction over all forms of interstate communication, deferring to the agency’s expertise prior to initiating the judicial process.”

See Ambassador, Inc. v. United States,

325 U.S. 317, 324 , 65 S.Ct. 1151, 1155 , 89 L.Ed. 1637 (1945);

MCI Communications Corp. v. Atlantic Telephone & Telegraph Co.,

496 F.2d 214, 219-20 (3d Cir. 1974);

Maguire v. Post Newsweek Stations, supra,

24 P&F Radio Reg.2d at 2095;

Daly v. Columbia Broadcasting System, Inc., supra,

309 F.2d at 85-86 ;

Massachusetts Universalist Convention v. Hildreth & Rogers Co., supra,

183 F.2d at 500 ;

Ackerman v. Columbia Broadcasting System, Inc., supra,

301 F.Supp. at 631 ;

Gordon v. National Broadcasting Co., supra,

287 F.Supp. at 455 . To the extent that they support the defendants’ position at all, four of those cases

(Daly, Hildreth, Ackerman,

and Gordon) merely hold that the Federal Communications Act creates no private cause of action and that the Commission is charged with the responsibility of enforcing the Act’s provisions. One of them

(MCI)

holds that a district court erred in failing to apply the primary jurisdiction doctrine in circumstances where a pending proceeding before the Commission would clarify the scope of a prior Commission ruling’s application to a telephone company. Another

(Ambassador)

recognized the Commission’s expertise in assessing the reasonableness of telephone rate regulations. The defendants’ strongest case

(Maguire,

discussed

supra

) simply applied the doctrine of exhaustion of remedies to plaintiffs’ due process claims in circumstances where the Commission’s “established procedure for consideration of viewer complaints about television programming” (24 P&F Radio Reg.2d at 2095) were thought to provide an appropriate forum to consider “all of their statutory and constitutional arguments . . . .”

Id.

30

Each and every one of the cases relied upon by the defendants have three things in common: (1) they did not require the Commission to adjudicate facts surrounding a charge of serious misconduct involving the Commission’s chairman and the Commission itself; (2) they did not call upon the Commission to formulate a theory of governmental action under the First Amendment or to fashion appropriate remedies thereto; (3) they were not matters upon which the Commission had already clearly spoken.

31

In short, although the Commission’s expertise with respect to First Amendment issues intertwined with the Communications Act is unquestioned (e.

g.,

fairness questions and equal time questions), the cases cited by the defendants, in the final analysis (to the extent that they deal with the primary jurisdiction doctrine at all)

32

merely hold that questions within the special expertise of the Commission should be referred thereto. In fact,

Hildreth, Ackerman,

and

Gordon

all seem to assume that the doctrine of primary jurisdiction has no role to play with

*1092

respect to constitutional claims against broadcasters even when those claims are intertwined with Communications Act issues routinely a part of the Commission’s work. If the doctrine of primary jurisdiction had no role to play there, it surely has no role to play here.

A mechanical application of cases applying the primary jurisdiction doctrine to the special and unique facts of this case would depart from the counsel that, “No fixed formula exists for applying the doctrine of primary jurisdiction. In every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation.”

United States

v. Western

Pacific R.R. Co., supra,

352 U.S. at 64 , 77 S.Ct. at 165 . Here the reasons for the existence of the doctrine are not present and no useful purpose would be served by referring the case (or issues unspecified by the defendants) to the Commission.

II. FACTUAL FINDINGS

The parties, of course, characterize the factual circumstances leading up to the adoption of the family viewing policy quite differently. None of the defendants are prepared to accept the plaintiffs’ position that Chairman Wiley and the Commission staff, acting on behalf of the Commission, pressured the networks and the NAB into adopting the family viewing policy thereby causing injury to the plaintiffs. The government defendants maintain that Chairman Wiley merely made suggestions and they deny that he threatened anyone:

Q. Mr. Wiley, did you at any time tell anyone that if industry self regulation was not forthcoming the Commission would take some kind of regulatory action?

A. I did not.

Q. Did you ever threaten any network or any representative with FCC regulation in the area of violence or sex on television?

A. No, I didn’t. And, frankly, that would have violated every precept I had about the responsible role between Government and industry.

33

Indeed Chairman Wiley is unwilling to concede that his “suggestions” were proffered with his endorsement: “I didn’t tell them that these were the steps they ought to take. I told them: ‘Here are some thoughts I have.’ Perhaps they had others.” And, “No, I didn’t say that these suggestions should be adopted. I said, ‘Here are some thoughts I have. Perhaps you have others. Could we discuss these, and could we discuss others.’ ”

Moreover, the government defendants deny that Chairman Wiley’s activities, whatever their character, were anything more than a “personal initiative.” They contend that his “personal” activities “cannot in any way be construed as agency action by, or on behalf of the Commission.”

The private defendants, on the other hand, equivocate as to the proper characterization of the Chairman’s advocacy or lack of it.

34

In their post trial brief, they suggest that the record evinces “the total lack of coercion or pressure on the networks by the FCC and its Chairman . . ..” Instead they write that “[T]he Chairman’s role was merely to suggest . . ..” At oral argument, however, the private defendants conceded that the Chairman had clearly done more than offer suggestions. How much more they were unable to say.

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Whatever differences there may be between the government defendants and the private defendants as to the nature of the Chairman’s conduct, they are united in their approach to characterizing its results. They contend that the adoption of the family viewing policy was not caused by Chairman Wiley. In fact, they maintain that Wiley’s proposals were rejected. Instead the private defendants suggest that the adoption of the policy is best viewed as “a continuation of the industry’s response to public concern over televised violence and other offensive material.” The family viewing policy, they claim, is “a direct outgrowth of the work of [CBS President] Arthur Taylor, and not the result of pressure or suggestions by Chairman Wiley.”

The defendants point to a letter written by Arthur Taylor to Wayne Kearl, then Chairman of the NAB Television Code Review Board as the key causal event. In that letter, Taylor proposed that the NAB Code be amended to reflect the principle that, “[Programming in the first hour of the network prime-time schedule should be suitable for family viewing.” David Adams, the Vice Chairman of NBC, perhaps best expressed the defendants’ position:

The crucial turning points in my mind in this whole development of the family viewing concept took place on two days. One was December 30th when Arthur Taylor simultaneous with the hand delivery of a December 30th letter to Wayne Kearl, chairman of the Code Review Board, and the release, the public release of that letter on the same date proposed a Code amendment

That started in motion a train of. events leading to the Code amendment. From that time on, from December 30th on, in my opinion, the suggestions of Chairman Wiley and the discussions of the FCC staff representatives dropped out of the picture and became relatively academic .

In my mind, the next crucial date, so far as NBC was concerned, was the meeting in Chairman Wiley’s office on January 9th. Not because of anything Chairman Wiley or the FCC staff said, or did at that meeting, but because CBS confirmed that the concept it was advancing did not contemplate any external private or other authority making prejudgments on the suitability of programs for family viewing.

So far as NBC was concerned that removed any inhibition we had against a code amendment.

From that point forward, this phenomenon became a matter of drafting, of mechanics, of arrangements of meetings, of timetables, and a certain amount of competitive skirmishing for public and trade credit in the press.

Counsel for NAB, however, would stress that the phenomenon, even at that point, had not become a mere matter of drafting. Instead, the NAB contends that whatever taint might be attached to the adoption of the family viewing policy by the networks was purged when the Code amendment was adopted by the “independent men and women” of the NAB Television Board of Directors. Even assuming that improper pressure might have been significant at earlier stages of the process, the defendants (led by the NAB) maintain that the Television Board’s approval was wholly uninfluenced by the Chairman or the Commission. For example, Chairman Wiley expressed the view that, “The National Association of Broadcasters, which of any group is closer to the people, it’s the licensees that live in those various communities and they are the people who adopted it. They adopted it without any pressure from me, without any discussion from me with them.”

Despite these various nuances, however, none of the defendants concede that Commission pressure, at any stage, was a vital factor. Rather they suppose as Arthur Taylor testified, “I wasn’t worried nor was anyone worried about what the FCC did. The FCC does not have jurisdiction in this area.”

Such post hoc rationalizations, however, cannot be squared with the evidence accumulated by the plaintiffs. They especially

*1094

are difficult to reconcile with the writings of the defendants made at the time of the decisionmaking process. Based on the totality of the evidence accumulated in this case the court finds that Chairman Wiley, acting on behalf of the Commission (and with the approval of the Commissioners) in response to congressional committee pressure launched a campaign primarily designed to alter the content of entertainment programming in the early evening hours. The evidence discloses, as former Commissioner Johnson put it, that the government activities involved amounted to “a virtually unprecedented orchestration of regulatory tools by the FCC.” The evidence confirms his conclusion that “What you have before you in this case is really unprecedented in my experience in terms of the totality of the force brought to bear on the industry . . ..” The court finds that Chairman Wiley in the course of his campaign threatened the industry with regulatory action if it did not adopt the essence of his scheduling proposals. On some occasions, when the persuasive demands of the situation so dictated, he would withdraw his threats or assume a low profile. But the Commission’s pressure in this case was persistent, pronounced, and unmistakable. Chairman Wiley’s actions were the direct cause of the implementation of the family viewing policy: were it not for the pressure he exerted, it would not have been adopted by any of the networks nor by the NAB. The threat of regulatory action was not only a substantial factor leading to its adoption but a crucial, necessary, and indispensable cause.

This is not to say that other factors did not contribute to the policy’s acceptance. Taylor, for example, was in part genuinely concerned with the level of violence on television. Other prominent CBS officials, however, believed that the problem was exaggerated and that the network had already taken positive steps to deal with it. To be sure, there had been a public outcry surrounding the broadcasting of several shows particularly the showing of the movie “Born Innocent.” But most of the leading network officials were satisfied that individual networks could handle and were handling the problem. In the absence of government threats, no drastic changes would have been made. Even Taylor would not have locked CBS into a public commitment to the family viewing policy unless it were clear that the rest of the industry would be bound by it. While it is doubtful that Taylor could have persuaded his own network to commit itself publicly to the family viewing policy in the absence of Wiley’s offensive, it is clear beyond doubt that the rest of the industry could not have been “persuaded” without Wiley’s pressure.

Taylor feared that if CBS publicly committed itself to such a policy that the commitment would work to CBS’s competitive disadvantage in the absence of a binding enforcement mechanism applicable to the industry at large. Past experience in children’s programming had led him to the conviction that broadcasters, more interested in dollars than in the public interest, would use violence as a tool to hike program ratings if they were left free to program in their own discretion. CBS was thus prepared to delegate its program discretion to the NAB, but only if its major competitors could be persuaded to do so as well. FCC pressure was necessary to achieve this objective.

The evidence supporting these conclusions is contained in the massive record before this court. Further findings are discussed in detail below.

1. The depiction of violence on television has been a continuing source of congressional and public concern for more than two decades.

35

Broadcasters had responded to

*1095

these concerns in a variety of ways. Attempts were made to reduce gratuitous violence, to schedule particularly violent programs in later hours of the evening, and to use advisories alerting audiences to the presence of disturbing material. These policies were employed as factors in the decisionmaking process rather than as hard and fast rules. They were serious considerations in broadcaster decisionmaking, but were by no means uniformly followed. Many of the broadcasters provided evidence of the fact that broadcasters have used violence as an easy way to raise ratings. As James E. Duffy, President of the ABC Television Network confessed in a speech given October 23, 1974, “[T]he race for audience ratings too often blinds us to our basic responsibilities. And in serving ourselves, we often do great disservice to our viewers. . . . Yes, a program like ‘Born Innocent’ should be shown. But, no, it should not be shown at such an early hour . . . when children more often than not control the dial.”

2. Although the FCC had been urged on a number of occasions to initiate regulatory efforts with respect to sex and violence on television, its response had been to hope, as former Commissioner Johnson testified, “that the problem would go away and that the issue raised by Congress one year would be forgotten the next, as sometimes happens.” For example, in May, 1974 Chairman Wiley wrote Senator Pastore that any FCC proceeding with respect to televised violence at that time would be premature. Referring to the fact that an important study on violence funded by the National Institute of National Health was still in the preliminary stages, the Chairman concluded that:

Upon the reaching of a meaningful stage in the violence profile study, the Commission could then, in coordination with other agencies, decide how best to proceed.

.

I am sure you can understand why the Commission believes that the time is not now. When it arrives you can be confident that the Commission will act responsively to this important concern which we share with you and the Committee.

3. The patience of congressional committees, however, had worn thin. Only a few weeks after the Commission’s considered conclusion that “the time is not now” the House Appropriations Committee demanded action:

This is the fifth consecutive year the Committee has included language in its report expressing concern with the effects of violence and questionable programming on children. It appears that the Commission has taken little or no action in response to those expressions.

The Committee feels that this issue needs resolution. Therefore the Commission is directed to submit a report to the Committee by December 31, 1974, outlining specific positive actions taken or planned by the Commission to protect children from excessive programming of violence and obscenity.

. The Committee is reluctant to take punitive action to require the Commission to heed the views of the Congress, and to carry out its responsibilities, but if this is what is required to achieve the desired objectives, such action may be considered. The Committee hopes the Commission will move promptly to resolve the administrative, jurisdictional, and constitutional problems associated with this issue. H.R.Rep.No.1139, 93d Cong., 2d Sess. 15 (1974).

The Senate Appropriations Committee followed suit:

The Committee also joins with the House in urging the Commission to proceed as vigorously and as rapidly as possible—

*1096

within Constitutional limitations — to determine what is its power in the area of program violence and obscenity, particularly as to their effect on children. Agreeing with the House, the Committee feels that this situation requires resolution and urges the Commission to submit the same report to it which was requested by the House by December 31, 1974. S.Rep.No.1056, 93d Cong., 2d Sess. 10 (1974).

4. Chairman Wiley’s reluctance to enter into the field had not been caused by a lack of concern for the problem as a private citizen and parent. Instead it stemmed from a deep belief that constitutional, statutory and prudential considerations dictated that government had no proper role to play. Nonetheless in response to the political pressure created by the House Report,

36

Wiley instructed his staff to begin working to determine “how the Commission can set about to comply with the House Committee’s request.”

5. The basic proposals of the staff were presented in a meeting with the Chairman on October 4, 1974, but some preliminary moves were made prior to that date. Sometime in August 1974, acting at the request of Chairman Wiley, Lawrence Sec-rest, Legal and Administrative Assistant to the Chairman, requested the NAB to strengthen its position on televised violence by reinstating language which had earlier existed in the Code. The proposal, which had been reduced to writing, was delivered by Secrest to John Summers, the NAB general counsel, and was considered by the NAB Television Code Review Board (hereinafter “Code Board”) at their October 1-2 meeting in San Antonio, and was rejected. At that same Code Board meeting, the question of violence on television was discussed in some detail. The topic, of course, had been the subject of numerous discussions over the years at board meetings.

37

The private defendants attach special significance to the fact that at this October meeting, Code Board member Wallace Jorgenson brought a briefcase loaded with letters complaining about television programming and dramatically threw them onto the meeting table. They emphasize that this action predated Wiley’s efforts and set in motion the process by which the Code would eventuálly be amended. The impression the defendants seek to convey is that the Jorgenson activity set in motion a process which would have produced a Code amendment even in the absence of FCC intervention. But Jorgenson proposed no specific amendment and had been principally concerned with the problem of vulgar language. Moreover the response of the network representatives had been cool to his presentation: he wrote his superior that “[Sjomebody is going to have to get to the Bob Woods, Jack Schneiders, Arthur Taylors, et cetera, at all three networks. Until we can do that we will only be treating the problem cosmetically.”

The Jorgenson foray can best be understood as a part of a continuing dialogue about the question of television programming which was neither calculated to produce nor capable of producing (in the absence of FCC intervention) network support of, or adherence to, a policy such as family viewing.

7. On October 4, 1974, the FCC staff presented three proposals to Chairman Wiley which they hoped might serve as appropriate Commission responses to the congressional directives. The staff proposals included a variety of administrative responses, including notices of inquiry, notices of proposed rulemaking and policy statements. The goal of pressuring broadcasters into regulatory efforts was manifest throughout the proposals. For example, the document submitted by the Office of Plans and Policy opined that the “emphasis of [the] Policy

*1097

Statement should be ‘jaw-boning’ and self-regulatory efforts to eliminate gratuitous violence and ‘indecent’ programming during those times when children are most likely to view television.” Moreover, the staff recommended that the Commission speak in terms of the public interest in order to provide a color of legal authority for its views. For example, the Office of Plans and Policy recommended that with respect to obscenity,

38

“the Statement would view the issue in its public interest rather than strict legal context thereby permitting a broader application of policy.”

Essentially the theory was that since the FCC was required to determine whether relicensing of a station was in the “public interest” it could identify in advance those matters which it considered to be outside the public interest. Thus Commission statements clothed in the language of “public interest" would warn broadcasters of consequences in the relicensing process. Moreover although the Commission could not directly censor programming content, it could achieve the same result by “public interest” jawboning. Finally, it is clear that NAB regulation in some form was viewed as an important component. The Broadcast Bureau recommended that the Commission’s Policy Statement should indicate that “increased enforcement of the industry codes concerning violence and children’s programming” was necessary and should warn that “Should the self-regulation efforts prove to be unsuccessful, the Commission may have to investigate rules which reach the outer constitutional limits and encompass a more active rule in program content.”

8. Chairman Wiley was convinced that formal Commission action was unwise policy. Moreover he believed that the staff proposals for formal Commission action presented severe First Amendment and section 326 problems.

39

Instead of moving ahead with formal proceedings, he decided to do something “more quick and more dramatic.”

40

Despite grave reservations about the viability of formal Commission actions, Wiley permitted the staff to continue working on proposed notices of rulemaking and inquiry. This work continued well into November.

41

Its continuation served two purposes. First, it preserved an option in the event of network recalcitrance. Equally important, since the industry press was aware of the continued work and reported it to an audience which included broadcaster executives, the fact of continued FCC staff work enhanced the threat of unwelcome Commission action. The statement by the government defendants that the work continued because of a desire to avoid discouraging certain staff members supplies no believable alternative explanation.

9. Six days after the October 4 meeting Wiley took the first in a series of steps

*1098

designed to bring Commission pressure to bear on the industry. In a speech delivered to the Illinois Broadcasters Association, he focused on “the question of violence and obscenity on television — particularly as to the effect of such presentations on our children.” The speech reminded broadcasters of their “public accountability” and “special” responsibilities as licensees. It stated that “[I]f self-regulation does not work, governmental action to protect the public may be required — whether you like it or whether I like it” and stressed that the issue involved was on the “front-burner of a rather ‘well-heated’ Chairman’s desk at the FCC.” Specifically it called for “intelligent scheduling, appropriate warnings, and, perhaps, even some kind of industry-administered rating program . . ..” In the process, it referred to a speech delivered in Atlanta by Wiley proposing a reduction in children’s commercials, and it applauded industry code amendments which had followed that speech, stating that “I am frankly optimistic that the combined effect of government encouragement and enlightened self-regulation will bring about constructive change in this very important aspect of public service.”

10. The import of the speech was unmistakable and the industry press was quick to say so.

Broadcasting,

the major industry journal in its October 21, 1974 issue stated that:

Chairman Wiley, who is loathe to delve into the area of program content under any conditions, appeared in his Illinois speech to be embarking on the same course that proved successful in connection with children’s television programming. A tough speech in Atlanta in May resulted several months later in the bind of self-regulation .

After referring to the questionable ability of the Commission to regulate in this area, a problem which the Chairman had conceded, the article continued: “However, Chairman Wiley apparently has not quit on jawboning. He is understood to be planning to confer with senior network officials on the matter.”

11. The witnesses uniformly testified that network executives and FCC officials religiously read the trade press. Stories concerning the subject matter of this case during 1974 — 75 were read by each of the principals.

12. In order to heighten the pressure already generated by his Chicago speech, the Chairman arranged for a meeting with the three Washington based vice presidents of the networks. As Eugene Cowen wrote in a memo to Everett Erlick, Senior Vice President of ABC,

Dick Wiley asked for a meeting with Kenney [Peter Kenney, NBC Vice President in Washington], Jencks [Richard Jencks, CBS Vice President in Washington] and me on Thursday afternoon “on the subject of violence, in advance of meetings I would like to have with the heads of ABC, CBS, and NBC.” I am enclosing two speeches. Wiley referred to his Chicago speech in reference to “What I have been saying on the subject.” He also said he “liked what Jim Duffy said in Jim’s October 23 speech ”

42

Thus the Chairman was not content to rest with “suggestions.” A series of personal lobbying efforts were initiated.

13. On November 7,1974, Chairman Wiley and members of the FCC staff met with the Washington vice presidents of CBS, NBC and ABC. At that meeting, Wiley proposed that each network issue a statement of policy on violence and obscenity, that the policies include cautionary warnings, and that programs requiring warnings be scheduled later in the evening. He further hoped, as Cowen stated in a November 8 memo, that “the NAB Code would be amended with exhortatory language urging members to follow the suggestions . . ..” Jencks’ memo of November 8 to Taylor discusses the scheduling proposal:

Chairman Wiley also asked consideration of an agreement that programs bearing

*1099

such a warning would not be scheduled before a certain time which, for discussion purposes, he identified as 9 p. m. local time, although in the discussion he conceded that time zone difficulties might make the selection of such a time impracticable.

43

At this point, the specifics of the Wiley proposals were negotiable and subject to discussion. But if anything was clear at this point, it was that the FCC had decided that the networks were required to do

something

about violence and sex related material on television,

44

and that “something” would have to involve a visible and substantive commitment to its reduction. As Jencks mentioned in his memo, the Chairman gave the

“char indication

that, if the networks were unable to agree to an approach upon these

general

lines, he would urge the Commission to take alternative action which, however, he did not specify.” (emphasis added).

This is not to say that Wiley had somehow changed his mind about the constitutionality of formal Commission action. He explicitly reaffirmed his doubts about its propriety. Rather Wiley left the impression that, as Jencks put it at the Affiliates Advisory Board meeting in La Costa on November 14, “Chairman Wiley is in a bind in that he feels he has to deliver to satisfy Congress.” Clearly Chairman Wiley’s initiative was perceived as something more than the suggestions of a concerned parent.

14. On November 22, the Chairman and members of the FCC staff met for two hours with the presidents of the networks and other network executives in the Chairman’s office in Washington. Most of the highlights of the meeting are well summarized by Adams of NBC in a November 25 memorandum to NBC President Herbert Schlosser.

Wiley opened the meeting by referring to the fact that there was a serious problem with “ ‘undue violence’ and ‘fairly explicit’ sexual material” on television and that complaints from a variety of sources had been received by the Commission. He indicated that, “The Commission was reluctant, for legal and policy reasons, to try to lay down specific program rules, but

something had to be done

. ..” (emphasis added). The Chairman was concerned with the lack of public visibility of network standards with respect to sex and violence and concerned about their substantive inadequacy as well. He “mentioned an effort on his part to get the NAB Code standards on this subject strengthened, and said this had been rejected, with network representatives — particularly ABC’s — opposing such a move. None of the network people at the meeting knew what he was talking about.”

45

Wiley proposed a joint network statement on the subject of sex and violence and suggested that the Code might want to express a new position in this area.

46

Once again the Chairman stressed the importance of scheduling shows which might be harmful or disturbing to children in the late evening hours and the necessity for providing warnings for particularly sensitive material whenever shown. Each of the network representatives said they had been “following a selective practice of

*1100

warnings in appropriate cases, and that they generally scheduled the early evening hours with programs suitable to all-family audiences.”

Although the Adams memorandum does not speak to the point, the trial and deposition testimony is relatively uniform that at least the NBC and ABC representatives had conveyed the impression that to the extent there was a problem they had developed and implemented policies to cope with it. This approach somewhat exasperated the Chairman (who sat at the head of the table with his staff members, pursuant to his directions, flanked behind him). He asked, “Are you saying there is no problem?” Before representatives of NBC or ABC could answer, Taylor responded by saying, “Well, Dick, we at CBS think there is a problem, and we intend to do something about it.” And as Cole (an FCC consultant who was present at the meeting) describes it:

He then indicated, either right at that point or shortly thereafter, that not only did they intend to do something about it and thought there was a problem, but, in fact, they were already in the process of doing something about it — something was already under way.

But Taylor made it clear that he felt that an industry-wide solution was necessary to deal with the problem. As Adams put it, “He claimed that there were occasions when CBS rejected a program, to find it turning up on ‘other stations,’ to its competitive disadvantage.” As Taylor later explained at trial his thinking had been influenced by a prior experience with children’s programming. CBS had changed its programming to make it more socially beneficial for children and discovered “to our horror that the programming that everyone else had complained about so bitterly and which we had changed ended up on the independent stations . . .. [T]he kids stopped watching our prosocial programming and watched the stuff we took off .. [W]hat we did was to damage CBS and the public . . ..” Taylor’s perception was that a network change without industry-wide enforcement would damage CBS financially without benefiting the public.

47

Chairman Wiley made it clear that he too was aiming for industry-wide acceptance of the scheduling proposal. His view was that in the early prime time hours parents all over the country should be assured that there would not be any programming “upsetting or disturbing to their children.” They could, therefore, permit their children to watch television during a specified time period free from the fear that offensive material would be presented. To advance this concept, he offered to contact the Independent Television Association and the Public Broadcasting System, i.e., he would use the power and prestige of his office to bring about industry-wide compliance. Nor did the Chairman confine his comments to approving the goal of industry-wide compliance and offering to help bring it about. As Adams recorded:

This opening led Chairman Wiley, later in the meeting, to make some not very veiled threats, as a response to Taylor’s point: that perhaps the FCC could deal with the ‘separate station problem’ by including in the license renewal forms, new questions on stations’ policies regarding the acceptance and scheduling of programs with sex and violence. We asked what the Commission would do with the information it obtained, since it was dedicated not to intrude on programming, and could not comprehend the Chairman’s response. He said the Commission might

*1101

also consider issuing a general policy statement, along the lines of the one on children’s programming/advertising, outlining what it expected of licensees in guarding against sex and violence, particularly when there were significant numbers of children in the audience.

Thus the Chairman threatened action which he himself believed to be unconstitutional. He did not press the suggestion of putting questions on the license renewal forms when immediate and deep hostility was evident, but the message was clear. Something had to be done or the FCC would be forced to take some kind of action — the issuing of a policy statement perhaps being the most likely first step. Moreover, the character of the proposals was clear. As Jencks wrote in a December 9 memorandum, “FCC Chairman Wiley’s early November meeting with the three network Washington Vice Presidents was followed by a meeting on November 22 with Messrs. Taylor, Schneider and other network chief executives at which he reiterated his request for the ‘voluntary’ adoption by the networks of a plan to place admonitions on programming not suitable for certain viewers and to follow the policy of scheduling such programming in late evening time periods.”

48

The meeting was closed with the understanding that each network would send the FCC a statement of its current standards and that a meeting between FCC staff and Broadcast Standards heads would take place to be followed by a later resumption of the meeting among those who had participated in this “Summit” meeting.

49

15. On November 29,1974, former Commissioner Nicholas Johnson wrote in his capacity as Chairman of the National Citizens’ Committee for Broadcasting to Chairman Wiley. He asked that the Chairman “afford the National Citizens Committee for Broadcasting or other representatives of the public the right to observe any further negotiations between the Commission and the television networks with respect to so-called ‘sex and violence’ in programming.” The Chairman’s response was straightforward. He wrote: “I do not believe that any useful purpose would be served by opening these meetings to outside groups such as your own.” The Chairman preferred closed door negotiating sessions with selected industry leaders, sessions which excluded the creative community, the independent television stations, representatives of public interest groups, and the public at large.

16. Within three days of the meeting in the Chairman’s office, ABC forwarded two policy statements to the FCC which represented its existing policies. They did not address the Chairman’s specific proposals.

The activities at NBC and CBS were more complicated. David Adams at NBC was assigned the task of drafting the NBC statement. A long meeting was held to discuss a draft on November 26 among NBC executives. The principal issue which developed from the meeting was whether to include this sentence in the NBC statement:

Program series of a theme or nature that would be unsuitable for young children are avoided at the opening of the network evening schedule, and if an individual or special program containing material that parents might consider unsuitable for their children is scheduled in such period, the system of warnings described below will be followed with regard to that program.

The scheduling aspect of the proposed sentence represented then existing NBC

*1102

policy. It was slightly different from the Wiley proposal in that the opening show could be less than an hour in length. Nonetheless, there was a reluctance to express a public commitment to this continuing practice largely because such a statement would limit NBC’s future programming flexibility. NBC had been doing satisfactorily in the ratings by using “family” programming in its opening show. But if public moods shifted it wanted to retain the ability to change. A public commitment might lock it into a financially disadvantageous policy. As Adams put it in his deposition, “Committing to it in perpetuity is the concern.”

The pressure of the Wiley campaign, however, led NBC executives to change their position. The key evidence on the point comes from a November 27 Adams memo to Schlosser:

The section on scheduling concludes with a sentence in parenthesis. Without that sentence it is the minimal statement we could make and I believe would be regarded as saying nothing. With the sentence, I believe it reflects what we are prepared and plan to do and although it might be less than expected, it will be responsive.

If the future discussions with Chairman Wiley result in a common approach by all networks along these lines starting next season, I believe we will be better served than driving the matter to regulatory action.

I would therefore vote for inclusion of the sentence in parenthesis, (emphasis added).

As Adams explained in his deposition, the regulatory action he referred to was FCC action. Indeed Adams later specifically communicated a concern to the Chairman of the NBC Affiliates Board of Delegates that there could be direct future effects on stations in connection with renewal form revisions and FCC policy statements. As he testified in his deposition:

[SJince a reference was made at the November 22 meeting to the possibility of adding questions in the renewal form and the possibility [of] an FCC policy statement on stations’ policies in connection with scheduling or treating of programs containing elements of sex and violence, to the extent that might happen that would have an effect on stations.

This did not mean that Adams conceded that FCC action could not be controlled in the long run but rather that the “time and trouble” would be better avoided.

The thinking of Adams is crucial. As Schlosser stated in his deposition, Adams was the “most experienced person in the company in this field” and “was more or less in charge of what we were doing ..” This does not mean that Adams was a sole decisionmaker. Rather as Adams testified in his deposition, final decisions “were usually made in group discussion from which a consensus emerged.” But Adams’ thinking in this area dominated NBC.

Adams’ belief that the company would be better served by adopting an industry-wide approach to scheduling than by “driving the matter to self regulation” was shared by Schlosser and apparently by the other NBC executives. Nonetheless it was decided in the short run not to include the scheduling commitment in the statement sent to the FCC. As Adams observed, the decision was “made by discussion, consensus and a conclusion was reached in which I concurred that

as a tactical matter

it was not necessary or advisable at this stage in a first submission to include that sentence Schlosser in his deposition amplified the point:

The language that precedes that sentence which refers to the fact that we take into account the suitability of the program for the time period in which it is scheduled really subsumes anything that would follow it. We also felt that for tactical reasons, because we had not submitted anything to the Chairman, this was the first document that we were sending, and because the conversation had always been on the basis that this would be an industry-wide commitment, and because we expected there would be a follow up meeting, we all concluded . we could at a later time discuss

*1103

scheduling in more detail and at this point in our first submission, we concluded that it would be better not to include the sentence, which would be a formal change of the Code of NBC’s practices.

50

The mechanics were to be worked out, negotiations were to follow, but the crucial decision had been made. NBC would support industry-wide compliance with a form of the Wiley scheduling proposal.

Ironically Wiley did not and could not know that he had succeeded in the NBC camp. The policy statement submitted by NBC to Wiley on December 2 contained no such commitment. He was frustrated by this fact and in a series of communications by him and/or members of his staff he attempted to get NBC to commit themselves publicly at least to what they were already doing. These persuasive efforts, he did not realize, were unnecessary. NBC was bargaining for industry-wide compliance; it was no longer pondering its basic course of action. The question was now one of tactics. Wiley’s threats of FCC action had succeeded.

17. The FCC staff met in New York with NBC executives having program standards responsibilities in the morning of December 10, with CBS in the afternoon of the same day, and with ABC on December 11. The meetings served a number of purposes. The FCC sought to clarify its position, to achieve an understanding of how the networks would apply a new scheduling policy to specific programs, and to learn more about the program practices of each of the networks. Gene Mater, Assistant to John A. Schneider, President of CBS Broadcast Group, summarized the FCC position in a December 10 memo:

Basically, here is what they want:

Some sort of policy statement of principles issued by the three networks, in which we would, in effect, recognize our “responsibility” with regard to children. We would state that, in implementation of this responsibility, all programming before 9 PM (New York Time) would be of a type that parents could generally rely on as being suitable for viewing by the young audience. This responsibility factor would presumably apply to the problems of violence, sex and language.

Recognizing that there might be occasional exceptions to this approach, we would also agree to some type of warning notice or disclaimer, both audio and visual, to be carried at the beginning of any program aired earlier than 9 PM that might be considered questionable . . .. The disclaimer would be standardized for the entire industry. The idea of a visual dot or triangle has been discarded.

Mater also commented on the point of how industry-wide compliance might be achieved:

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Regarding the independent stations, the FCC is inclined to issue a policy statement which would draw them into the same procedure the networks would use.

52

As to whether this initiative for this entire move would come from the networks or NAB, the feelings seem to be that a statement from the networks would be preferred although the NAB action would certainly be acceptable.

The FCC proposals at these meetings were also described by Paul Putney, Assistant Chief for Law in the Broadcast Bureau of the FCC, in a memorandum to the Chairman:

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1. A joint policy statement by the three networks emphasizing their commitment to protect children;

2. Scheduling after 9:00 p.m. series programs which (in the judgment of the network) would be inappropriate for young children [9:00 p.m. local time was stated to be first choice, but the possibility was recognized that this may have to be 9:00 p.m. at point of origination];

3. Warnings (audio, video and in printed schedules) would be given for any material broadcast before 9:00 p.m. local time which (in the judgment of the network) was unsuitable for young children;

4. Programs broadcast at any time which would receive a warning under current standards because of the likelihood of offense to a significant segment of the audience would continue to receive such warnings; and

5. The pre 9:00 p.m. children’s warnings would be a standardized symbol and text while other warnings would be specifically tailored to state the reason for the warning.

In commenting on the NBC meeting, Putney noted that “No argument was advanced that led us to think we might be headed in the wrong direction,” but philosophical and practical reservations were voiced by NBC representatives. The CBS staff members reflected an “attitude quite different] from that expressed by Arthur Taylor in his meeting with you on November 22.” Not only were constitutional and philosophical problems raised about FCC involvement in the area, but reservations were discussed about the propriety of the discussions themselves. Discussions with ABC revealed that they had the “most serious programming problem if they adopt a policy along the lines of our proposals.”

The impact of the FCC proposals on each of the networks’ schedules was discussed in quite specific terms. Wiley had instructed the staff not to comment on specific shows,

i. e.,

not to express their own views on the suitability of various programs for early prime time viewing. Nonetheless, since the networks were encouraged to discuss the impact of the proposals on their own and their competitors’ schedules, some expressions by the staff members were made in the give and take of discussion. These comments by FCC staff members were not perceived, however, as FCC directives but merely personal views of the staff members. This, of course, is to be contrasted with the proposals themselves. The proposals were viewed as FCC sponsored. It was clear that the details were open to discussion and negotiation. But the basic message remained clear: something had to be done to minimize the depiction of sex and violence as well as the use of objectionable language on television in the early evening hours.

18. On December 17, the FCC staff members who had met with the network executives in New York met with Chairman Wiley in his office to discuss the status of the campaign in the light of the December 10-11 meetings. Although Putney had described the FCC presentation at those meetings “as unified and (in our opinion) effective,” there were by this time grounds for concern. The FCC personnel did not know that NBC had already decided to go along and certainly nothing said at the December meetings gave them any encouragement. The bright hope was thought to be Arthur Taylor, but the objections raised by CBS representatives Swafford, Mater, Kirschner, and Goldberg indicated that Taylor would have to overcome internal obstacles at CBS if CBS was to provide a constructive response. The scheduling difficulties presented to ABC by the proposals made it apparent that in the absence of movement from the other networks, ABC was unlikely to respond positively to the initiative.

The question was what, if anything, Wiley should do to generate a response. Essentially the group decided that the initiative had been made, that any further move by them would appear heavy handed, that each of the networks was aware of the approaching December 31 deadline for the FCC reports to Congress, and that no “reminder” of the urgency of the situation was

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necessary. The only thing the FCC could do was wait.

On the other hand, it was apparent that the December 31 deadline was unrealistic, particularly as Cole testified in view of the time delays involved in going through the NAB Code structure. The likelihood was that it would be difficult to report anything definite to Congress by December 31. Wiley had met with Taylor the previous day in his office. When asked whether the NAB was referred to at the meeting, Wiley responded, “No, I don’t think he got very specific with me, very frankly.” At some point, however, Wiley and his staff got the impression that Taylor needed time and that the Code was a live possibility. Wiley, therefore, decided to ask for and ultimately did receive an extension of the deadline for the report to Congress from December 81, 1974 to February 15, 1975.

19. During the FCC staff meeting of December 17, Les Brown, a reporter for the New York Times, contacted the Chairman and interviewed him over the telephone. In the course of that interview, the Chairman indicated in response to questions that public hearings on the question of sex and violence were always a possibility and conceded that the networks would not like that possibility. The next day a Les Brown column appeared in the

New York Times

headlined “Head of F.C.C. Weighing Hearing on T.V. Violence.” The article stated that Wiley “made no secret of the fact that he might use the prospect of hearings as negotiating leverage to spur the networks into adopting policies on their own to protect the young from adult-oriented programs.” The Chairman was quite concerned about the article, first, because he thought it imported a threatening tone to his remarks which he did not believe had been present

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and second, because it would appear as though he were deliberately using the press at this late hour to put additional public pressure on the networks.

20. On the same day that the Brown article appeared,

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Wiley had telephone conversations with Erlick and Taylor in which he told them he had been misquoted. He placed a call with Schlosser, on the same day, could not get through, and after a series of missed returned calls talked to him on December 20.

The first telephone conversation was with Taylor.

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According to Meade, a CBS vice president, Taylor in essence told Wiley, “We are not going to send you this letter right now.

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We are working on something much more important and we need a lot of support. We don’t want to muddy the waters with this. We don’t want you in the act. Be patient and bide your time.” Moreover, Meade continued:

He admonished Mr. Wiley to — , I don’t like to be rude, but to keep his mouth shut in terms of throwing his weight around, that he was having this jawboning and so forth . . . and the essence of what Taylor said is, “You are making it much more difficult for us,

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because it has to be an industry-regulated thing. We cannot have the government breathing down our neck, and, furthermore, if you continue in your present tone, you are going to make it impossible to get anything through the Code . . . ..”

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Meade indicates that the Les Brown article came up in the conversation and “that was one of the things that Taylor lambasted Wiley with over the telephone, because it looked to us as though that was a direct conversation between Les Brown and Wiley.” Taylor told Meade (who could not hear Wiley’s end of the conversation) that Wiley “apologized for his activities and Taylor said to me that he thought that maybe he laid back a little bit.”

Both Wiley and Taylor confirm that Wiley disavowed the Brown article and asserted that he had been misquoted; both confirm that Taylor was concerned that a CBS response at this point would appear to be a direct response to the threats contained in the Les Brown article.

21. On December 20, Wiley and Schlosser finally were able to reach each other on the telephone. Schlosser prepared a memo for the file on December 24. The memo summarized the “principal points” Wiley made. In pertinent part, the memo paraphrases the Chairman’s position as follows:

The Les Brown article in the New York Times on the sex and violence issue was not correct. Wiley did not intend to threaten the networks with public hearings. He would rather work with us to achieve a result. However, there would be a notice of inquiry leading to some kind of policy statement if some kind of agreement cannot be reached with the networks. If the networks and the Commission “agree to disagree” then he, Wiley, would go to the “court of public opinion.” He referred me to his speech before the “Dr. Parker group.”

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The episode richly illustrates the general approach taken by the Chairman throughout. He did not want to “threaten” anyone. At the same time, he wanted the networks to know that if something constructive in the eyes of Congress, the FCC, and the public were not done, the FCC would be compelled to take some sort of action. He felt that FCC action of any type at the very least raised serious constitutional questions and would strongly prefer as a matter of policy that the FCC do nothing. But if the networks were to be so unwise as not to act, the Commission (probably but not necessarily with his support) would be forced by the circumstances (which he had created) to take action. Thus Wiley could offer “suggestions” initially caring little about the specifics of the response

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but requiring that something constructive with public visibility be accomplished. On some occasions, he viewed himself not as personally threatening anyone but rather as offering advice as a friend concerning the consequences which would follow if constructive action were not taken. On other occasions in the heat of the campaign, he would deliberately threaten. Sometimes he would repudiate “threats.” The bottom line, however, remained the same, in substance if not in tone — “Do

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something to curb ‘offensive’ material or we, the FCC, will be forced to take action.”

Thus the Chairman called Schlosser to reassure him that the Brown article which pictured him as threatening the networks was inaccurate. Before the conversation had ended, ironically, he had delivered in substance the same threats he had called to disavow. The difference was that he had delivered them as a friend, not as a foe.

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22. During this same December period, CBS was groping for an appropriate response to Wiley’s “initiative.” At the November 22 meeting, CBS had agreed to send Wiley a statement of principles which it followed. No such statement existed, and the network’s first attempt was to produce one. The process was frustrating because nothing but platitudes were produced. This was why CBS had no written set of procedures. Its mode had been to rely on the experience and judgment of its personnel in program practices. The kinds of judgments which needed to be made on a day to day basis were so diverse and variable, and were so related to questions of aesthetics that discursive law-like standards were impractical. Taylor was convinced that since judgments in this area resisted definition, an outside enforcement body was needed to police the industry — to keep it honest.

Early in the drafting process, proposed letters were addressed to “Dear Dick or “Dear Chairman Wiley.” A draft of December 11 stated that: “We are also exploring various avenues of approach, including the possibility of suggesting to the NAB Television Code Review Board the inclusion of additional provisions relating to these matters.” By December 17, the third draft addressed to “Dear Chairman Wiley” stated “[T]he CBS representative on the NAB Television Code Authority has been instructed to urge the adoption of the principles embodied above as part of the Television Code.” Drafts four and five are apparently unavailable

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but draft six which is dated the next day, December 18, reflects a basic tactical change. That draft was not addressed to the Chairman. Instead CBS had decided, however tentatively, to write to Wayne Kearl, Chairman of the NAB Television Code Review Board.

It is at least symbolic and perhaps much more than that that the first known draft addressed to Kearl is dated December 18, the same day the Les Brown article appeared, and the same day Taylor berated Wiley for jawboning and breathing down the necks of the networks. Taylor, to repeat his own characterization, was “outraged” by the Les Brown article. He was particularly concerned that any move by CBS in its wake would be interpreted generally as a knuckling under to FCC power. It is understandable that a corporate executive known as a “financial wizard” who was finally prepared to take a financially risky step in part in response to what he viewed as

moral

imperatives would not want to have his actions characterized as a mere expedient ploy.

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Taylor was concerned

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that any additional Wiley pressure at this point would backfire. It was felt that it would hinder Taylor’s persuasive attempts not only in the industry at large but within CBS itself.

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Clearly from a public relations standpoint, it would be better for CBS and the industry if actions it took were perceived as soul searching responses to the problem of how best to provide quality entertainment on television. The existence of the FCC pressure would not be ignored by any industry executive with political antennae. There was no need, however, for additional emphasis. Instead if Wiley and the FCC could be taken out of the foreground, FCC pressure could continue to influence but not in so blatant a fashion as to make the industry look subservient and irresponsible.

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The Les Brown article threatened to create an industry image of subservience to the FCC and, thereby, reduce the possibility of the kind of action Taylor wanted. It is unclear whether it was the Brown article which caused executives at CBS to stop drafting letters to Wiley and start writing them to Kearl. The coincidence of the activity on the December 18 date, however, is striking.

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The Brown article made it clear that if CBS clothed its response to the situation in the form of a letter to Wiley the action would appear to be a response to Wiley instead of the situation. A letter directed to Kearl, on the other hand, made CBS’s action appear to be an exercise in industry self-regulation.

Between December 17 and 19, seven consecutive drafts were prepared. CBS, at that time, did not know that the December 31 deadline for the FCC report to Congress would be extended, but did know that the Commission was scheduled to meet on Friday, December 20, to consider its action.

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By December 19 the ninth and final draft

67

was completed. The timing and intensive character of the drafting activity belies any suggestion that the CBS response was not prepared under the gun.

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23. Although the Taylor letter was not presented to Kearl until December 30, the actual decision to send it was made before Christmas. Meade was in charge of the CBS staff work on the proposal “to see whether or not the Code idea was a feasible way of implementing this idea. And we were discussing it night and day at the time.” He interrogated the principal CBS executives involved and “[a]long the line somewhere I told Taylor that all votes were in, and it was feasible. We should go with it.”

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On December 19, Meade wrote a memo to Taylor: “Attached is the latest, and I hope final, draft of the Code letter . Swafford . . . believes that the best tactic would be for him and Mr. Jencks to carry the draft to San Antonio Monday, December 30.”

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The next day, Taylor wrote back, “This is Fine — Let’s Get Everything Ready To Roll.” On December 23, a meeting of CBS executives was held to consider the letter to Kearl. William Paley, Chairman of the Board of CBS, Inc., was present at the meeting and Taylor explained that a draft policy had been adopted and presented for his consideration. In explaining the proposal to Paley it was emphasized that Wiley had responded to congressional directives to report back to Congress by December 31 and

That his response had been to initiate this series of meetings with the networks, urging them to undertake self-regulation on the subject and that . . . the policy adopted, which was being explained to Mr. Paley, was

calculated to meet those concerns, to satisfy the public that we had done something, and along the way to satisfy the Congress and the FCC that we were being good citizens.

The rationale for the proposal was thus presented not in terms of moral imperatives but rather in terms of corporate response to public, congressional, and agency pressure.

Similar justifications were presented to Kearl by Swafford and Jencks when they finally delivered the letter to him in San Antonio.

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As Jencks testified in his deposition:

Well, none of us know whether, if at all, there might be anything issued from the FCC, although there had been these threats and those repeated in the article of Les Brown’s that you were questioning me about.

I am sure that in talking to Mr. Kearl we couldn’t help but point out that in our judgment, industry self-regulation was a better alternative than some threatened and as-yet-undefined and legally questionable, perhaps, but possible, federal intervention.

Taylor, at the December 23 meeting, in explaining the proposal to Paley referred not to his own feeling that the depiction of televised violence had gone too far but rather, as Jencks testified, “to the interest of Congress in that; the interest of Chairman Wiley in it.” When the court finds that advocates as skilled as these attempted to justify their proposals in terms of avoiding federal regulation, it is hard to accept the idea that the fear of federal regulation was not a powerful factor at large in the minds of most broadcasters during the period in question. Swafford’s deposition testimony as to Taylor’s state of mind is revealing:

Q. Prior to January 7th, did any of the CBS executives express to you an opinion that if the networks and the NAB did not act, that there would be government regulation?

A. Yes. Taylor said that.

Q. When did he say that?

A. I don’t recall an exact moment at an exact meeting but it was his firm conviction that, as he read Congress, as he read Wiley’s reaction to Congress reacting to public clamor, as he read that he felt there would be some kind of government action.

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24. On December 30, the same day that Swafford and Jencks delivered the letter to Kearl, NBC issued a press release which stated that its current schedule “reflects the policy of opening its prime time programming with series suitable for family viewing . . . . NBC intends to continue this policy, whether or not the NAB Code is amended to include a provision along these lines.”

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The timing of the NBC release was, of course, dictated by the CBS initiative. Adams in a December 30 memorandum to ten NBC executives observed, “[T]he timing of the statement was prompted by the fact that this morning CBS representatives delivered- to the Chairman of the Code Review Board a letter from Arthur Taylor . ..”

Thus, as of December 30, NBC was committed to a family viewing policy in its opening program but not in the opening hour of prime time. CBS was committed to a family viewing policy if, but only if, the NAB adopted a Code amendment.

On January 2 or 3, NBC issued another release, dated January 6, in which it announced that it “plan[ned] to devote the first hour of its prime time network schedule to programming suitable for general family viewing.” Adams, in describing the process leading to the change from the first

program

to the first

hour

testified that, “I think I recommended to Mr. Schlosser, who was in California, over the phone and suggested to Mr. Goodman that it was now time for us to take the additional step of going beyond a policy of the first program to a policy of the first hour CBS had proposed that as a matter of code amendment and I thought the tactical reasons for deferring were no longer valid.” Thus the NBC press releases announced a decision already secretly made

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and timed to meet the tactical demands of public relations skirmishing.

Interestingly CBS was prepared to give the other networks whatever public relations advantages it could. The company made a conscious decision, as Meade expressed it in a memo to Paley and Taylor, “to avoid publicity, to avoid taking a front position, to eschew credit,” and to refuse “to comment on the substance of our letter to the Code Board.” This low profile was not struck out of any sense of corporate beneficence to its competitors. Rather it was designed to minimize the possibility that inter-corporate jealousy would block adoption of the proposed NAB amendment. As Meade put it, “We are very happy with this absence of public attention (and controversy), since the main objective is to gain Code provisions that all three networks will live by, thus eliminating competitive advantage.”

25. On January 7, the Code Board, pursuant to a request of CBS, met in special session to consider the CBS proposal. Kearl started the meeting by calling on Swafford, CBS’s representative on the Board, to speak to the proposal. The address given by Swafford attempted to justify the proposal not in terms of the desirability of protecting children from televised violence or in terms of the intrinsic desirability of curbing abuses. Instead the speech spoke to the dangers of government censorship. The speech outlined past government censorship attempts and argued that the danger of censorship was particularly acute because the liberals who would ordinarily oppose censorship efforts, were on the bandwagon to combat the presence of violence in the media. Swafford contended that this unusual coalition of liberals and conservatives read in the light of history “tell us that it’s imperative that our industry take positive and immediate action.” Specifically Swafford told the Board that:

*1111

A Senator has told the Chairman of the Federal Communications Commission in so many words: “Forget about the First Amendment; we’ll let the courts worry about that.”

During the conversation we at CBS had last month with members of the FCC staff, they told us quite bluntly that when they say to members of Congress that the Commission does not have the power to censor program content, they’re asked: “What do you need? Tell us what you need, and we’ll give it to you.”

After the Swafford speech, the meeting progressed with discussion from various members of the Board. At some later point, however, Grover Cobb, now deceased, but then the Senior Executive Vice President for Government Relations of the NAB, arrived at the meeting to give a report from Chairman Wiley. Cobb in part stated, according to A1 Schneider, ABC’s representative to the Code Board, that the Chairman applauded the actions of CBS and NBC and anticipated a similar statement from ABC. Cobb reported that the Chairman wanted the NAB to act as the machinery or the mechanism to oversee compliance with the newly announced network policies since statutory restrictions inhibited him from doing so. Thus, from the very outset of the official NAB deliberations, FCC involvement and encouragement of NAB adoption and enforcement of the family viewing policy was in evidence.

At the meeting, NBC and ABC network representatives made comments which raised a number of questions about the necessity for Code action. Three local station representatives led by Bob Rich of the NBC affiliate in Duluth questioned whether or not “we would appear to be knuckling under to government pressure.” Only Jorgenson spoke strongly in favor of some form of action. The meeting ultimately “disintegrated” into a shouting match over the potential application of the family viewing policy. In one particularly inelegant display of competitive fervor, the ABC representative upon learning that CBS did not know how the proposed policy would apply to “All In The Family” retorted, “Well, if you are not going to move the goddamn program, we are not going to move the goddamn ‘Rookies.’ ”

Swafford sensed that passage of the CBS proposal was not at hand and succeeded in engineering a delaying resolution. It directed the Program Standards Committee “to review and to make recommendations affecting (1) principles relating to the scheduling of programs in early evening prime-time periods and (2) the use of suitable advisory legends as to the nature of program content.” It was “agreed” that the resolution “[did] not commit the Program Standards Committee to recommend any specific action,” but committed it only to presenting a report to the Television Code Review Board during the NAB convention in April, 1975.

26. On January 8,1975, ABC announced that “the first hour of each night of its prime time network entertainment schedule will be devoted to programming suitable for general family audiences starting with the new television season in the Fall of 1975.” There is no question but that the timing of this announcement was influenced by the imminence of the January 9 meeting. That point was conceded by Rule in his deposition. But Rule qualified the admission by stating that “[T]he meeting itself did not dictate the conclusions. It merely dictated the timing of the announcement.”

Yet the ABC officials are remarkably unable to describe in any detail the conversations which led the company to adopt the policy. But few contemporaneous writings have been produced, and the officials themselves have come forward with only occasional bits and pieces concerning the company’s deliberations. They apparently ask the court to believe that ABC’s adoption of this policy was part of an evolutionary process in which ABC over a period of years had studied the question of what to do about violence and adult material on television and suddenly free of pressure from the FCC decided one day in January of 1975 to adopt the family viewing policy.

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Erlick described the process in a more realistic fashion:

This discussion had been evolving over a period of five, six, seven, eight weeks since the early Wiley meetings, and I think we were all slowly coming to the conclusion that this was going to be the way it was. It was simply a way of crystallizing it.

Although the ABC officials do not recall that FCC pressure played a significant role in their decisionmaking, the court finds it difficult to conclude otherwise. Among the factors pointing to the potent influence of the FCC are the testimony of Commissioner Johnson as to the amount of pressure generated by the Wiley initiative, the continuous interaction between FCC and ABC representatives, the timing of the announcement, the fact that ABC (according to most of the witnesses who considered the issue) had the most to lose by joining the venture (in terms of scheduling changes required), and the failure of ABC officials to offer any convincing counter explanation. Most important, however, is that the January 8 announcement itself recognizes that the fear of government action was a substantial factor in ABC’s thinking:

We wish to emphasize the necessity to preserve

the basic rights of freedom «f expression under the Constitution and under the Communications Act. Government action in the area of program content must be both cautious and carefully limited lest we do permanent damage to the principles of free expression which are so fundamental in our society. All Americans recognize, we are sure, that these are sensitive and fragile concepts.

Accordingly, ABC strongly supports the concept of industry

self-regulation,

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This is not to suggest that fear of government action was the only factor in ABC’s decision. Public relations seems to have played an important role. NBC and CBS had already declared their approval of the family viewing principle. ABC was reluctant to stand alone. One of the significant risks of going it alone, however, was the risk of government retaliation. ABC was unwilling to bear that burden. There is, moreover, precious little evidence to support the notion that ABC’s decision had anything to do with a concern for programming in the public interest. Reflecting the programming approach which dominated the industry, ABC approached the question from the perspective of a “responsible” businessman, not from the perspective of an independent trustee making programming decisions in the public interest. While other considerations also appear to have played a role in ABC decisionmaking, the court nevertheless can only conclude from the evidence before it that here as in the case of CBS and NBC, FCC pressure was a substantial factor in ABC’s adoption of the family hour policy.

27. On January 9,1975, Chairman Wiley and his staff met again with the same network executives who had attended the November 22 meeting. In addition, however, Vincent Wasilewski, the President of the NAB, and Grover Cobb were in attendance on the invitation of the Chairman. Taylor had attempted to have the meeting cancelled on the ground that it was unnecessary, but Wiley was anxious to facilitate an expeditious adoption of the family viewing policy, to clarify certain features about it, and to encourage that the policy be extended to the first two hours of prime time.

With respect to the timing of the NAB actions, Wiley asked Cobb and Wasilewski if there were any way to secure NAB Code Board approval prior to the NAB convention in April. In doing so, he referred to the Commission’s obligation to report to Congress in the middle of February and, as Cole recalls it, said in substance that “the more that he could report back in terms of the developments from . . . the Chairman’s point of view, the better.” Wasilewski had no difficulty in characterizing Wiley’s conduct:

Q. Did you consider Chairman Wiley to be jaw-boning in the area of sex and violence the early evening hours and family viewing?

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A. Yes.

Q. And that was jaw-boning both as to the networks and to the NAB.

A. Yes, that would be my characterization.

Wasilewski and Cobb agreed to investigate the possibility of expediting NAB action.

Second, Wiley, at a point near the end of the meeting, argued, as Adams recalls it, that “[I]f there were to be a provision with regard to the first hour of network entertainment scheduling, it didn’t make much sense not to have the preceding hour also considered as subject to the same policy.” Cole testified that the parties agreed to consider the position.

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,

The FCC did, however, receive some more definite commitments from the networks at the meeting. The networks agreed that their policies did not mean that “anything goes” after 9:00 and that programming suitable for family viewing necessarily meant programming suitable for young children.

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CBS affirmed that its proposal did not envision prescreening by the NAB.

77

Once again the necessity for an industry-wide policy was discussed. Taylor, according to Jencks’ testimony, advocated the view that “[S]ome independent authority, namely the Code authority, ought to be an arbiter or ought to be able to pronounce what the correct interpretation of the Family Viewing provision was in case any network departed from the correct interpretation.” In short, the networks would agree to delegate their decisionmaking as to what was and was not proper programming to the Code Board in order to prevent deviations from the rule. Adams recalls that once the prescreening issue had been cleared up, he had no objections to an NAB amendment, but at the meeting itself he argued that broadcasters ought to indepen

*1114

dently decide on their programming and that it might be better to wait to see how the policy operated in practice before resorting to the Code. Adams, of course, believed that industry-wide acceptance was desirable, but he was not yet prepared to accept NAB enforcement. He was not vigorously opposed to something in the Code, however, provided that broadcasters retained the ultimate decisionmaking power.

Chairman Wiley, of course, made clear that the adoption of the family viewing policy in the Code would be (as Cole put it) “a good first step” and in response to a request from one of the network representatives agreed (as he had in the November 22 meeting) to contact INTV and PBS representatives.

28. The Wiley request that the NAB adoption process be expedited bore fruit within the week. On January 15, the NAB Television Board of Directors met in Palm Springs. Wasilewski had been asked if the T.V. Board could approve the family viewing policy without prior recommendation from the Code Board. Wasilewski observed that the T.V. Board simply would not rush into acceptance of the policy, but he did resolve to see what could be done to expedite the process. Spurred by Wasilewski and some effective lobbying by CBS’s T.V. Board representative Jencks and by the FCC staff, the T.V. Board passed a resolution which provided in part that:

The Television Board of Directors of the NAB commends the three television networks for their individual actions with respect to programming in the initial hour of network prime time. At the same time, mindful of the keen interest in the subject, the Board recommends that the Television Code Review Board direct its Program Standards Committee to expedite as much as possible its review and recommendations affecting (1) principles relating to the scheduling of programs in early evening prime time periods, and (2) the use of suitable advisory legends as to the nature of program content.

The Board requests the Television Code Review Board to meet on or before, February 15, 1975, to consider these recommendations.

The influence of Wiley could not have been more apparent. The “request” that the Code Board meet in February rather than in April was specifically calculated to elicit Code Board action prior to the Commission’s report to Congress.

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Moreover the motivation for positive action to curb the broadcasting of “offensive” material was equally apparent. As Jencks recounted, “My recollection is that Mr. Wasilewski did generally support the view that this was an instance in which industry self-regulation through the NAB would, in his opinion, avert possible government action.” Moreover it was FCC action that Wasilewski was referring to although Jencks does not recall “whether anybody ever set forth to predict in so many words just what the FCC might do beyond a hearing or notice of inquiry, or whatever.” Wasilewski told the Board that he had assured Wiley that he would inform the Chairman of the results of the meeting and did so immediately after it concluded.

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Although the principals do not recall the meetings,

80

calendars reveal that Wiley and Secrest met with NAB officials frequently

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to discuss the political realities of effecting a Code amendment.

29. On January 28, the Program Standards Committee of the Code Board met to consider the role of the NAB with respect to the family viewing policy. The Committee was composed of three network representatives, Swafford (CBS), Schneider (ABC), and Hermino Traviesas (NBC) together with Rich, the representative from the Duluth NBC affiliate. The Committee could not agree to do anything more than pass this resolution:

Because several constructive proposals were proffered as to the approach to be taken by the Television Code Review Board in response to the NAB Television Board of Directors’ resolution, the Program Standards Committee recommends that the same be presented to the full Television Code Review Board for its review and resolution.

That innocuous resolution masked a bitter set of differences.

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CBS, of course, was very much in favor of NAB Code enforcement. Both NBC and ABC were opposed to NAB enforcement but were willing to support some type of NAB statement of principle. ABC favored a resolution which would have provided in part that during “the first hour of network entertainment programming in prime time and in the immediately preceding hour, broadcasters devote their schedules to programming suitable for general family audiences.” The principles declared in the resolution would not be enforced under the NAB Code but instead the NAB would “use its leadership to further the objectives of this policy in encouraging industry-wide adherence.”

NBC proposed that language be placed in a “Supplement” to the Code: “Entertainment programming inappropriate for viewing by family audiences should not be broadcast during early evening time periods, including the first hour of network prime-time programming.” The NBC proposal similarly eschewed NAB enforcement, “[T]he suitability of programming to time periods . . . are matters for judgment solely by the broadcaster on a case-by-case basis.” Thus both ABC and NBC were unwilling to delegate their authority to make programming decisions to outside authority. Schneider put it crisply, “I don’t want [Code Authority Director] Stockton Helffrich programming our network.”

Swafford responded by pointing out that “[A]ll of us had surrendered that kind of authority to the Code authority in subscribing to the Code.” The discussion evolved, as had the January 7 Code Board meeting, into a battle over specifics. Schneider pressed Swafford to tell what CBS planned to do with “All In The Family.” Once again Schneider warned that if CBS did not move “All In The Family;" ABC would not move the “Rookies.” As Swafford points out, by this point the two shows had become “shorthand for sex and violence.” They had become symbols of broadcaster good faith in applying the family viewing concept. But in keeping with CBS’s strategy, Swafford refused to discuss the application of the policy.

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Rich emerged at the meeting as a critic of each of the network policies. He announced that he was dead set against government intrusion. He criticized the fact that the proposal as applied in the midwest would be applicable from 6-8 p.m. instead of 7-9 p.m. (because of the feed-in from New York) and did not see how the networks could justify a protective policy which did not apply to one-third of the nation’s children. Essentially he asked, as Schneider’s notes record, “Why not tell Wiley no?” The answer, as Schneider’s notes also reveal, came from Swafford, “Commis

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sion would regulate if we did not come up with something.”

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30. On February 4,1975, the Code Board met in the NAB Building in Washington, D.C. to consider the role of the association with respect to the family viewing policy. Each of the members of the Board was acutely aware of the imminence of the FCC’s responsibility to report to Congress. As Wasilewski conceded, the report of the FCC was a “catalyst for us to take positive action in a reasonable vein prior to [its issuance.]” Accordingly, quite unlike the bitterness and divisiveness which dominated the Program Standards Committed meeting, the Code Board meeting was marked in Wasilewski’s judgment by “a dedication of purpose ... on the part of everybody concerned to reach a satisfactory solution between and among” the nine members of the Board.

Nonetheless, the substantive differences between ABC and NBC, on the one hand, and CBS, on the other, had not been resolved between January 28 and February 4. ABC and NBC continued to oppose Code enforcement. Schneider, the ABC representative, had been instructed by ABC management to try to get the ABC proposal accepted at the Board meeting. Traviesas, the NBC representative, came to the meeting with a statement, prepared by Adams, which again reiterated NBC’s position that the interpretation of the family viewing proposal should be made by the individual broadcaster, not by the NAB.

CBS was unyielding, however, in its resolve for NAB enforcement, and it appeared that a majority of the Board favored the CBS approach. To be sure either NBC or ABC could have killed the proposal, since as a political matter, the NAB Board would be reluctant to adopt an amendment with which one of the three networks would be unwilling to abide. But neither NBC nor ABC was willing to kill the CBS proposal.

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Instead both ABC and NBC voted for a proposal which ceded far more power to the NAB than they thought was appropriate.

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The FCC and CBS had successfully maneuvered the two networks into a position where blockage of the proposal had become unthinkable. To block the proposal two weeks before the FCC's report to Congress would have required a degree of political masochism rarely displayed by large corporations. Here apparent corporate political benefits clearly outweighed corporate political risks. The contention that this grudging support of the NAB Code amendment arose independently of the substantial pressure generated by the imminence of the FCC report is not credible. In the absence of Wiley’s statements at the January 9 meeting, no February Code Board meeting would even have been held. In the absence of the pressure generated by the prospect of the FCC report to Congress, and the

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threats as to what it would contain, NBC and ABC would not have delegated their programming authority to the NAB. No other credible explanation for the shift in vote from January 28 to February 4 has been provided.

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31. On February 19, 1975 the Commission submitted its Report to Congress.

See Report on the Broadcast of Violent, Indecent, and Obscene Material,

51 FCC2d 418 (1975). Significantly the Report did not do what the congressional committees had asked it to do: to determine what its powers were “in the area of program violence ..”

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Instead it reported that “Regulatory action to limit violent and sexually-oriented programming which is neither obscene nor indecent is less desirable than effective self-regulation, since government-imposed limitations raise sensitive First Amendment problems.” 51 F.C.C.2d at 420. But the Commission carefully refrained from deciding whether those problems were merely issues which would have to be resolved in the courts or whether the First Amendment, in the judgment of the Commission, constituted a bar to regulation. Instead the Commission after reviewing the policy statements issued by the networks, and the action taken by the Code Board, and characterizing them as “commendable,”

id.

at 422, concluded that, “This new commitment suggests that the broadcast industry is prepared to regulate itself in a fashion that will obviate any need for governmental regulation in this sensitive area.”

Id.

The Commission thus refused to delineate what powers, if any, it thought it had in this area.

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By doing so, it preserved its option to threaten governmental action while simultaneously recognizing that any action it might take would involve First Amendment difficulties.

32. The Code Board action technically was only a recommendation to the NAB Television Board of Directors. Nonetheless Wasilewski had informed Wiley before and after the Code Board meeting that the recommendation of the Code Board made the likelihood of adoption by the Television Board “very great.” Indeed the Commission itself reported that, “The Commission has no reason to expect that the Television Board will reject the proposal of the Television Code Review Board.” The Chairman was unwilling to rely on high probabilities, however, neither was he unmindful of his commitment (made to the networks at both the November 22 and January 9 meetings) to do what he could to secure acceptance of the family viewing policy by the independents and the public broadcasters.

The first step in the effort consisted of two public speeches. The first was given to the National Association of Television Program Executives on February 10,1975; the second to the Radio and Television Commission of. the Southern Baptist Convention on February 13, 1975. The speeches paraded the now familiar theme:

A number of interested citizens and some members of Congress contend that the problem of violence on television is so serious as to warrant some remedial action by the Federal Communications Commission. While I understand and share such concern, I cannot agree that specific governmental regulation in this highly sensitive First Amendment area

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would be desirable

at the present time.

Instead, my view has been that the

FCC

— in

the discharge of its public interest responsibilities

and consistent with its authority under the Communications Act — can play a constructive role

at this point

by focusing increased industry attention on the issue and by encouraging the consideration of self-regulatory reforms. (emphasis added).

And to insure that the threat of regulatory action would not be hidden in carefully qualified language, the Chairman went on to make the connection explicit:

Recent events make it appear that our initiative has been successful and that the broadcast industry intends to regulate itself

in order to obviate the need or demand for governmental action in this area,

(emphasis added).

The passage is significant for two reasons. First it concedes that the fear of governmental action played a predominant role in the decision of the networks and the Code Board. Second, it sent a clear message to the Television Board.

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33. On March 24, 1975, the Chairman and members of his staff met with Herman Land, the president of INTV (the Association of Independent Television Stations) to discuss the application of the family viewing policy to the independent stations. As Land explained during the course of the meeting, the independents had a number of concerns. First, they viewed the policy as a network attack on them.

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They could not understand a policy which permitted the networks to program “rough stuff” from 4-6 p. m. when millions of children watched television, but prohibited the independents from broadcasting similar material during the most crucial hours of their program day,

i. e.,

7-9 p. m.

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If any changes were to be made, Land felt the whole schedule should be looked at, not merely the two prime time hours. Moreover he was concerned about the First Amendment implications of the venture, about the difficulties of defining family viewing, and about the imposition of a network standard of propriety into a broadcasting system which emphasized diversity at the local level. Finally, of special and pressing concern, was the problem of contractual obligations already assumed by independent stations. Some stations were already committed under long term contracts to show programs which would probably not meet the Code Board’s proposed requirements. If an amendment were passed which did not at least take this fact into account, some independents would be forced into violating contracts or withdrawing from the Code. Land informed Wiley that INTV would ask the T.V. Board to delay action so that INTV would have time to prepare an alternative proposal. Land stressed he did not oppose family viewing in concept but felt that it presented serious problems for independent stations which needed accommodation.

Needless to say Wiley was anxious to blunt any organized opposition to the adoption of the NAB amendment.

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He

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resorted to a familiar strategy. He told Land that he and his organization were free to do whatever they wished with respect to the NAB Code but the Chairman would report the results to Congress.

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Wiley, however, sympathized with the contracts problem of the independents and indicated that an accommodation to the independents on that score would not “cause any concern.”

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34. On April 8, 1975, the Television Board met in Las Vegas and adopted the recommendation of the Code Board along with an amendment in the form of a grandfather clause designed to minimize the contract problems of the independents.

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The Board had tendered Land a special invitation to address the meeting and Land, referring to his contacts with Chairman Wiley, explained the contract difficulties faced by members of his organization.

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The meeting was characterized by a series of proposals and counterproposals, but, as expected, the substance of the Code Board recommendation was adopted. Perhaps the most cogent analysis of the politics of the situation was presented by Jencks. In a memorandum distributed to a number of CBS executives, Jencks remarked that, “Despite the 11 to 4

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key vote in favor of the Family Viewing proposal it would be fair to observe that a substantial majority of the members of the Code Board

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would, in my judgment, have voted against the proposal if they could have

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