# National Broadcasting Company, Inc. v. Federal Communications Commission and the United States of America, Accuracy in Media, Inc., Intervenor

> Court of Appeals for the D.C. Circuit · July 11, 1975 · 516 F.2d 1101

URL: https://www.frixlaw.com/law-library/cases/327947

## Case

- **Full name:** NATIONAL BROADCASTING COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, Accuracy in Media, Inc., Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 11, 1975
- **Citations:** 516 F.2d 1101; 170 U.S. App. D.C. 173
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Fahy, Tamm, Leventhal, Bazelon, Wright, McGowan, Robinson, MacKinnon, Robb, Wilkey, Leven-Thal
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/327947

## Opinion text

516 F.2d 1101
170 U.S.App.D.C. 173 , 1 Media L. Rep. 2135
NATIONAL BROADCASTING COMPANY, INC., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and the United States of
America, Respondents, Accuracy in Media, Inc., Intervenor.
No. 73-2256.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 21, 1974.
Decided Sept. 27, 1974.
Order Vacating Opinion Dec. 13, 1974.
Orders March 18 and 19, 1975.
Dissenting Opinion June 2, 1975.
Judgment Vacated July 11, 1975.
Floyd Abrams, New York City, with whom Dean I. Ringel and Howard Monderer, Washington, D. C., were on the motion for petitioner.
John W. Pettit, Gen. Counsel, Washington, D. C., with whom Joseph A. Marino, Associate Gen. Counsel, and Lawrence W. Secrest, III, Washington, D. C., were on the motions for respondent.
1
Timothy B. Dyk, Washington, D. C., with whom J. Roger Wollenberg, Washington, D. C., were on the brief for Columbia Broadcasting System, Inc., as amicus curiae.
2
J. Laurent Scharff, Washington, D. C., was on the brief for Radio Television News Directors Assn. and the Society of Professional Journalists, Sigma Delta Chi, as amicus curiae.
3
Ellen S. Agress, New York City with whom Earle K. Moore, New York City, was on the brief for the Office of Communication, United Church of Christ, as amicus curiae.
4
Stanley H. Kamerow, Washington, D. C., was on the motion for intervenor, Accuracy In Media, Inc., Thomas F. Ragan also entered an appearance for intervenor, Accuracy In Media, Inc.
5
John B. Summers, Washington, D. C., was on the brief of National Assn. of Broadcasters, as amicus curiae.
6
Douglas Caddy, Washington, D. C., was on the brief for the Center for the Public Interest of the Robert M. Schuchman Memorial Foundation, Inc., as amicus curiae.
7
Ellen S. Agress, New York City, was on the brief for National Citizens Committee for Broadcasting, as amicus curiae.
8
Henry Geller, Washington, D. C., was on the brief for the Rand Corp., as amicus curiae.
9
Alexander Greenfeld, New York City, was on the brief for New York Times Co., as amicus curiae.
10
Carl. D. Lawson, Atty., Dept. of Justice, entered an appearance for respondent United States.
11
Before FAHY, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.
LEVENTHAL, Circuit Judge:
12
On September 12, 1972, the television network of the National Broadcasting Company broadcast its documentary entitled 'Pensions: The Broken Promise,' narrated by Edwin Newman. On November 27, 1972, Accuracy in Media (AIM) filed a complaint with the Federal Communications Commission charging NBC had presented a one-sided picture of private pension plans. The handling of this case by the Commission will be discussed in more detail subsequently (section II). For introductory purposes it suffices to say that on May 2, 1973--as it happens, the same day NBC received the George Foster Peabody Award 1 for its production--the Commission's Broadcast Bureau advised NBC that the program violated the Commission's fairness doctrine. 2 That decision was upheld by the Commission. We reverse.
I. THE PROGRAM
13
The 'Pensions' program is the heart of the case, and for that reason it is set out in Appendix A to this opinion.
14
For convenience, we will summarize the main outlines of the program--with notation that certain aspects are dealt with more fully subsequently.
15
The 'Pensions' program studied the condition under which a person who had worked in an employment situation that was covered by a private pension plan did not in fact realize on any pension rights. Its particular focus was the tragic cases of aging workers who were left, at the end of a life of labor, without pensions, without time to develop new pension rights, and on occasion without viable income.
16
The program had no set format, but its most prominent feature was a presentation of tragic case histories, often through personal interviews with the persons affected.
17
One group of workers lost pension eligibility when their company decided to close the division in which they had worked. The first of these was Steven Duane, who after 17 years with a large supermarket chain, lost his job as foreman of a warehouse when the company closed the warehouse and discharged all its employees, leaving them with no job and no pension rights. Now in his fifties, starting again with another company, he felt ill-used and frightened of the future.
18
There were a number of other specific examples of employees terminated by closing of plants or divisions. The program also focused on the problems of vesting, the years of service with the company required for a worker to become eligible under its pension plan. NBC interviewed employees with many years of service who were suddenly discharged just prior to the date on which their pension rights were to have become vested. Thus Alan Soresen asserted that he was the victim of a practice--a 'very definite pattern'--under which his employer, a large department store chain, fired men just prior to vesting, assigning 'shallow' reasons to men who had served with records beyond reproach.
19
A similar account was given by Earl Schroeder, an executive fired by Kelly Nut Company, after he more than met his 20 years of service requirement but was six months shy of the age 60 condition.
20
The program also set forth abuses in the literature given employees ostensibly explaining their plans--pictures of contented retirees and words comprehensible only to the most sophisticated legal specialist. It took up examples where the company had gone bankrupt prior to their date of retirement, leaving the employees without pension funds.
21
The documentary gave instances of pensions lost for lack of portability, citing plans that required the employee be a member of the same local for the requisite period. NBC interviewed a number of teamsters who had worked for the same employer for over twenty years, but who later found that certain changes in work assignment entailed changes in union local representation and ultimately loss of pension.
22
Much of the program was a recount of human suffering, interviews in which aging workers described their plight without comment on cause or remedy. They told of long years of working in the expectation of comfortable retirements, finding out that no pension would come, having to work into old age, of having to survive on pittance incomes. Interspersed with these presentations by workers were comments by persons active in the pension field, public officials, and Mr. Newman.
23
None of those interviewed--and these included two United States Senators, a state official, a labor leader, a representative of the National Association of Manufacturers, a consumer advocate, a bank president, and a social worker--disputed that serious problems, those covered by the documentary, do indeed exist. Some of the comments related to the overall performance of the private pension system. We shall discuss these later (section VI B). In addition to comments on the private system generally, there were isolated expressions of views on the related but nonetheless quite distinct issue of the wisdom of reliance on private pensions, regardless of how well they function, to meet the financial needs of retirees. 3 Finally, several speakers gave broad, general views as to what could be done. 4
24
There were also comments on legislative reforms that might be taken to cope with problems. These will be discussed separately in part VI D of this opinion.
Concluding Remarks
25
It may be appropriate to quote in full the concluding remarks of narrator Edwin Newman, since the FCC considered them 'indicative of the actual scope and substance of the viewpoints broadcast in the 'Pensions' program.' He said:
26
NEWMAN: This has been a depressing program to work on but we don't want to give the impression that there are no good private pension plans. There are many good ones, and there are many people for whom the promise has become reality. That should be said.
27
There are certain technical questions that we've dealt with only glancingly, portability, which means, being able to take your pension rights with you when you go from one job to another, vesting, the point at which your rights in the pension plan become established and irrevocable.
28
Then there's funding, the way the plan is financed so that it can meet its obligations. And insurance, making sure that if plans go under, their obligations can still be met.
29
Finally, there's what is called the fiduciary relationship, meaning, who can be a pension plan trustee? And requiring that those who run pension funds adhere to a code of conduct so that they cannot enrich themselves or make improper loans or engage in funny business with the company management or the union leadership.
30
These are matters for Congress to consider and, indeed, the Senate Labor Committee is considering them now. They are also matters for those who are in pension plans. If you're in one, you might find it useful to take a close look at it.
31
Our own conclusion about all of this, is that it is almost inconceivable that this enormous thing has been allowed to grow up with so little understanding of it and with so little protection and such uneven results for those involved.
32
The situation, as we've seen it, is deplorable.
33
Edwin Newman, NBC News.
Success of Program
34
Like many documentaries, 'Pensions' was a critical success (supra, note 1) but not a commercial success. We shall consider the television reviews in more detail subsequently, but it may be observed here that they were generally enthusiastic. Critics called it, 'A potent program about pitfalls and failures of some private pension plans . . .,' 'a harrowing and moving inquiry . . .,' and 'a public service.' 5 Dissenting notes were also struck.
35
As to the viewing public, 'Pensions' ran in competition with a popular medical drama and a crime movie, and ran a poor third, garnering only a 16% share of the viewing audience. In fact, NBC was able to sell only two-and-one-half minutes of advertising time out of an available six. 6
II. COMMISSION PROCEEDING
36
Watching the program with particular interest was Accuracy in Media ('AIM'), a 'nonprofit, educational organization acting in the public interest' 7 that seeks to counter, in part by demanding aggressive enforcement of the fairness doctrine, what it deems to be biased presentations of news and public affairs. On November 27, 1972, the Executive Secretary of AIM wrote to the FCC complaining of the following:
37
Our investigation reveals that the NBC report gave the viewers a grotesquely distorted picture of the private pension system of the United States. Nearly the entire program was devoted to criticism of private pension plans, giving the impression that failure and fraud are the rule. . . . The reporter, Mr. Newman, said that NBC did not want to give the impression that there were no good private pension plans, but he did not discuss any good plans or show any satisfied pensioners. 8
38
In subsequent correspondence, AIM added the accusations that NBC was attempting 'to brainwash the audience with some particular message the NBC is trying to convey' 9 and that the program was 'a one-sided, uninformative, emotion-evoking propaganda pitch.' 10 Thus AIM not only claimed that the program had presented one side of an issue of public importance, the performance of private pension plans, it also charged that NBC had deliberately distorted its presentation to foist its ideological view of events on the viewing public.
39
In its reply, NBC rejected the allegations of distortion. It asserted that the 'Pensions' broadcast had not concerned a controversial issue of public importance:
40
The program constituted a broad over-view of some of the problems involved in some private pensions plans. It did not attempt to discuss all private pension plans, nor did it urge the adoption of any specific legislative or other remedies. Rather, it was designed to inform the public about some problems which have come to light in some pension plans and which deserve a closer look. 11
41
Since, in the view of NBC, there was no attempt to comment on the overall performance of private pension plans, no controversial issue had been presented, for all agreed that the examples of suffering depicted were not themselves subject to controversy. Even so, NBC pointed out that it had presented the view that the system as a whole was functioning well; consequently, it asserted, even if it had inadvertently raised the issue of the overall performance of private pension plans, the side generally supportive of the system had been heard. 12
42
In a letter to NBC, 13 the Broadcast Bureau of the Commission rejected AIM's allegations of distortion as being unsupported by any evidence but upheld the fairness doctrine complaint. The staff took issue with 'the reasonableness of your [NBC's] judgment that the program did not present one side of a controversial issue of public importance' and concluded that the program's 'overall thrust was general criticism of the entire pension system, accompanied by proposals for its regulation.' 14 The staff opinion included extensive quotation from the transcript of the documentary, but little explanation as to how the quoted portions sustained the staff's conclusion. Only four brief statements were singled out as containing 'general views' on the overall performance of the private pension system. NBC appealed the Broadcast Bureau ruling to the entire Commission. 15
43
On December 3, 1973, the Commission issued a 'Memorandum Opinion and Order' affirming the decision of its staff. 16 Although it acknowledged that the broad issue upon review was 'whether the Bureau erred in its ruling that NBC's judgment on these matters was unreasonable,' it emphasized that:
44
The specific question properly before us here is therefore not whether NBC may reasonably say that the broad, overall 'subject' of the 'Pensions' program was 'some problems in some pension plans,' but rather whether the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system. 17
45
The Commission found that 'Pensions' had in fact presented views on the overall performance of the private pension system. It took note of the 'pro-pensions' views expressed during the documentary, but concluded that the 'overwhelming weight' of the 'anti-pensions' statements required further presentation of opposing views. The Commission commended NBC for a laudable journalistic effort, but found that the network had not discharged its fairness obligations and ordered it to do so forthwith. This petition for review followed.
46
NBC petitioned the Commission for a stay, but was informed that the Commission 'expects prompt compliance with its ruling.' NBC filed a motion in this court for an expedited appeal, a stay, and expedited consideration. That motion was heard and granted on February 14, 1974, and the case was heard on the merits on February 21, 1974. AIM has intervened on the side of the Commission. The stay that has been in effect during the pendency of this appeal reflected, in part, an estimate of the likelihood of success by NBC as petitioner. We now set forth the reasons why we have decided that the case should be determined in favor of NBC. 18
47
III. THE FAIRNESS DOCTRINE: GENERAL CONSIDERATIONS
48
Petitioners urge that the Commission's decision be set aside as a misapplication of the fairness doctrine and a violation of the First Amendment. Since we reverse on the former ground, we have no occasion to consider the latter.
49
Now twenty-five years old, the fairness doctrine imposes a double obligation on the broadcast licensee. First, he must devote a substantial portion of available time to the discussion of 'controversial issues of public importance.' 19 When he presents such an issue, the licensee has a further duty to present responsible conflicting views. 20 The doctrine, particularly as applied to newscasts and news documentaries, has been given statutory recognition in section 315 of the Communications Act, 21 and has been held to inhere in the 'public interest' standard government the grant of license applications and renewals. 22
50
The essential task of the fairness doctrine is to harmonize the freedom of the broadcaster and the right of the public to be informed. Except for limited areas like libel and obscenity, the First Amendment generally forbids government regulation of the content of journalism. Not only is state censorship forbidden, so also is the government prohibited from compelling editors to include state approved material. Even a carefully limited statute giving political candidates attacked on a newspaper's editorial page the right to reply in kind was recently invalidated by the Supreme Court as an unconstitutional encroachment upon journalistic discretion. In Miami Herald Publishing Company v. Tornillo, 23 a 'right to reply' law--analogous to the personal attack rule that is part of the fairness doctrine--was ruled unconstitutional. The 'benign' purposes of the state statute were deemed irrelevant:
51
[T]he Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size of the paper, and content, and treatment of public issues and public officials--whether fair or unfair--constitutes the exercise of editorial control and judgment. It has yet to be demonstrated how governmental control of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.
52
418 U.S. at 258, 94 S.Ct. at 2839-2840.
53
But almost from the beginning, the broadcasting press has been treated differently. Congress created the Federal Communications Commission and its predecessor, the Federal Radio Commission, because the available space on the electromagnetic spectrum was far exceeded by the number of those who would use it. 24 It was necessary to ration this scarce resource, for '[w]ithout government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.' 25
54
Scarcity required licensing in order to bring order to chaos, but the dangers of control in the hands of a relative few were early recognized. The public interest did not countenance delegation to a few licensees to pursue their purely private interests at the expense of listeners and viewers, and instead the broadcaster was held to have an obligation to serve and inform the public. 26
55
Under the fairness doctrine the public is not to be confined to hearing only the views approved by those licensees, but is entitled to be informed of the diversity of opinion in the land, to have that presented by appropriate spokesmen for its consideration and judgment.
56
The salutary intent of the fairness doctrine must be reconciled with the tradition against inhibition of the journalists' freedom. That tradition, which exerts a powerful countervailing force, is rooted in the constitutional guarantee of freedom of the press, a guarantee that has vitality for broadcast journalists, though not in exactly the same degree as for their brethren of the printed word. 27 And the same statute that provides authority for the FCC to implement the fairness doctrine for its licensees contains a clear provision (in section 326) disclaiming and prohibiting censorship as part of the legislative scheme. In construing the fairness doctrine, both the Commission and the courts have proceeded carefully, mindful of the need for harmonizing these often conflicting considerations.
57
In Red Lion Broadcasting Company v. FCC, 395 U.S. 367 , 89 S.Ct. 1794 , 23 L.Ed.2d 371 (1969), the Supreme Court approved the Commission's personal attack and political editorializing rules, 28 which are relatively narrow corollaries of the general fairness obligation. Under the personal attack rules a licensee must afford reply time to 'an identified person or group' whose 'honesty, character, integrity, or like personal qualities' are attacked in the course of presentation of views on a controversial issue of public importance. The political editorializing rule imposes a reply obligation where the licensee endorses or opposes a candidate for public office.
58
These rules were the target of sharp attack. The essence of the challenge was that no matter how slight, how narrow, or how precise, any limitation on the freedom of the licensee to broadcast what he chooses perforce violates the First Amendment. Rejecting this contention, a unanimous 29 Supreme Court remainded the broadcaster of the essential difference between the print and broadcast media: the physical limitations of the latter restrict the number of those who would broadcast whereas expression by publication is, at least in theory, available to all. To posit a First Amendment restriction on government action taken to enhance the variety of opinions available to the viewer is to protect those fortuitous enough to obtain broadcast licenses at the expense of those who were not. In now-famous language the Court stated:
59
Because of the scarcity of radio frequenceis, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. 30
60
This has become the guiding principle of the fairness doctrine: limitations on the freedom of the broadcaster--even those that would be unacceptable when imposed on other media--are lawful in order to enhance the public's right to be informed. 31 The Court's opinion, written by Justice White, reflects the circumspection of this principle of decision. While rejecting as unfounded claims that the personal attack and political editorializing rules would induce self-censorship by licensees in order to avoid the rigors of compliance with their requirements, the Court cautioned that its judgment might be different 'if experience with the administration of those doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage. 32 . .' And the Court expressly stated that in approving the personal attack and political editorializing rules, it did not 'approve every aspect of the fairness doctrine. 33 . .' . . .'
61
Four years later, in Columbia Broadcasting System v. Democratic National Committee, 34 the Court again discussed the fairness doctrine. The Commission had held that licensees could impose a blanket ban on all editorial advertising. An intermediate court ruling that such a ban, even if consistent with the fairness doctrine, violated the First Amendment, 35 was reversed by the Supreme Court, in an opinion by Chief Justice Burger.
62
In CBS the Court reaffirmed the principle that scarcity requires that the broadcast media be treated differently than other forums of expression, but observed that this is not a principle without bounds, that not all regulation can be justified in the name of scarcity. Overzealous invocation of rules such as the fairness doctrine could cause an 'erosion of the journalistic discretion of broadcasters in the coverage of public issues.' 36
63
Journalistic discretion, the Court emphasized, is the keynote to the legislative framework of the Communications Act. 37
64
The limitations of broadcasting both spawned the fairness doctrine and establish that it is dependent primarily on licensee discretion. Perfect compliance is impossible. No broadcaster can present all colorations of all available public issues. 412 U.S. at 111, 93 S.Ct. 2080 . Choices have to be made and, assuming that the area is one of protected expression, the choices must be made by those whose mission it is to inform, not by those who must rule. In the words of Chief Justice Burger:
65
For better or worse, editing is what editors are for; and editing is selection and choice of material. That editors--newspaper or broadcast--can and do abuse this power is beyond doubt, but that is not reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to preserve higher values. The presence of these risks is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility--and civility--on the part of those who exercise the guaranteed freedoms of expression. 38
66
There are no other decisions on the fairness doctrine from the Supreme Court, but this court has had occasion to consider the doctrine in several cases and it has endeavored to maintain the balance between broadcaster freedom and the public's right to know. Commercial advertising cases present different considerations than those before us and we need not reexamine the doctrine as there applied. 39 More related to the present issue is the public service announcement discussed in Green v. FCC, 40 where we refused petitioners' request to require a licensee to present a point of view on the Vietnam conflict that had already received extensive coverage. In Green, as in the instant case, there was some initial difficulty in defining the issue allegedly presented in the offending broadcast. We stated that this determination, as well as the decision as to the number of views to be presented and the manner in which they are portrayed, is one initially for the licensee, who has latitude to make all pertinent judgments and is not to be overturned unless he forsakes the standards of reasonableness and good faith. 41 Reliance on the reasonableness standard, 'which is all that is required under the fairness doctrine' 42 preserves licensee discretion and serves the essential purposes of the fairness doctrine 'that the American public must not be left uninformed.' 43
67
In Democratic National Committee v. FCC, 44 we faced knotty problems in sorting out the fairness obligations generated by a radio and television address by the President and a reply by the opposition political party. In upholding the Commission decision that the licensees had not abused their discretion, Judge Tamm, writing for the court, stressed the importance of reliance on licensee judgment:
68
By its very nature the fairness doctrine is one which cannot be applied with scientific and mathematical certainty. There is no formula which if followed will assure that the requirements of the doctrine have been met. Procedurally, the doctrine can only succeed when the licensee exercises that discretion upon which he is instructed to call upon in dealing with coverage of controversial issues. 45
69
Finding no abuse of discretion, we affirmed.
70
In Healey v. FCC, 46 petitioner claimed to be within the ambit of the personal attack rule, which requires the licensee to afford apportunity to reply to an individual attacked in the course of a discussion of a controversial issue of public importance. As in the case now before us, the critical question was whether the broadcast involved a controversial issue of public importance. Petitioner, an American Communist, claimed that her role as a Communist within her community was such an issue. Judge Wilkey, the author of the Green opinion, pointed out that there is a substantial difference between what is newsworthy, i. e., that which is interesting to the public, and what is controversial:
71
Merely because a story is newsworthy does not mean that it contains a controversial issue of public importance. Our daily papers and television broadcasts alike are filled with news items which good journalistic judgment would classify as newsworthy, but which the same editors would not characterize as containing important controversial public issues. 47
72
Converting every newsworthy matter into a controversial issue of public importance and requiring editors to 'balance' every presentation creates a danger. Again in the words of Judge Wilkey:
73
To characterize every dispute of this character as calling for rejoinder under the fairness doctrine would so inhibit television and radio as to destroy a good part of their public usefulness. It would make what has already been criticised as a bland product disseminated by an uncourageous media even more innocuous. 48
74
The principle of deference to licensee judgments, unless the licensee has simply departed from the underlying assumptions of good faith and reasonable discretion, is an integral part of the fairness doctrine, and a fixture that has been reiterated and applied with fidelity by the courts. 49 It is the backdrop against which Judge Tamm's opinion for the court in the Democratic National Committee case takes note, that
75
in opinion after opinion, the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine. . . . 50
76
The question is whether NBC has been shown to have exceeded its 'wide degree of discretion' in its 'Pensions' documentary.
77
IV. ABSTENTION FROM PRELIMINARY ISSUE--WHETHER FAIRNESS
78
DOCTRINE SHOULD BE RESERVED FOR LICENSE RENEWALS
79
A preliminary issue has been presented to us by amicus curiae Henry Geller, Esquire, formerly general counsel of the Commission, and a serious student of the fairness doctrine. 51 Mr. Geller's view is that under the law the FCC could not properly issue the ad hoc fairness ruling on this program, but was limited to consideration of the matter only in connection with NBC's application for renewal of license, and then only to determine if some flagrant pattern of violation of the fairness doctrine is indicated by NBC's overall operation, with a renewal standard, comparable to that voiced in New York Times v. Sullivan, 376 U.S. 254 , 84 S.Ct. 110 , 11 L.Ed.2d 686 (1964), requiring a showing of 'malice'--either bad faith, or 'reckless disregard' of fairness obligations.
80
Initially, it appears, it was the FCC's procedure to refer complaints to the station as received, obtain its response, and then consider the matter definitively at renewal in connection with the overall showing of the station. 52 This practice was being followed in 1959, when the Communications Act was amended to codify the standard of fairness. 53 In 1962, the Commission changed its procedure to resolve all fairness matters as they arose and, if the station were found to have violated the doctrine, to direct it to advise the Commission within 20 days of the steps taken 'to assure compliance with the fairness doctrine.' 54
81
Mr. Geller puts it that the resulting series of ad hoc fairness rulings 'have led the Commission ever deeper into the journalistic process, and have raised most serious problems.' 55 The effect, particularly on the small broadcaster, has been to inhibit the promotion of robust, wide-open debate. Thus, in a case where the FCC found that a licensee had afforded reasonable opportunity for opposing viewpoints, 56 the FCC process was long (decision 21 months after broadcast) and arduous. The licensee's burden included not only substantial legal (about $25,000) and other expenses (e. g., travel), but also required top-level station personnel to devote substantial time and attention, with attendant dislocation of regular operational functions. In sum, Mr. Geller says that a substantial inhibiting effect derives not merely from any rulings adverse to the broadcaster, but the strain, time and resources involved in coping with particular challenges even if they are unsuccessful.
82
Amicus cites expressions in Columbia Broadcasting System v. Democratic National Committee, supra, rejecting a contention (right of access for editorial advertisements) that would involve the government too much in the 'day-to-day operations of broadcasters' conduct,' and stating the fairness doctrine, in terms of the legislative scheme and purpose, in these terms, 412 U.S. at 127 , 93 S.Ct. at 2098 :
83
Under the Fairness Doctrine the Commission's responsibility is to judge whether a licensee's overall performance indicates a sustained good faith effort to meet the public interest in being fully and fairly informed. The Commission's responsibilities under a right-of-access system would tend to draw it into a continuing case-by-case determination of who should be heard and when.
84
We have stated the amicus position at some length because we do not wish our opinion to be misunderstood as inadvertent on the point. The position is a serious one, and it deserves serious consideration. 57 The fact that Red Lion reviewed a particular ruling is no bar, for this point was not raised. Indeed, even as to points that were raised, the Court was careful to say that it would be alert to reexamine its assumptions upon an appropriate showing.
85
We do not think, however, that the present case is an appropriate vehicle for determination of the contention presented by amicus. It is resisted by petitioners, who seek reversal but not on this basis, which might enhance their risk. Moreover, it was not expressly considered by the Commission. While amicus states that a copy of the underlying study, see footnote 51, supra, was distributed to each Commissioner prior to the Commission's consideration of this case, that is not the same thing as putting the matter in issue in the proceeding. The proposal is one that merits consideration by the Commission before it can be discussed by this court as a legal imperative. 58 We abstain, then, from any determination in this case concerning the merits of the proposition put by amicus curiae.
86
V. APPLICATION OF THE FAIRNESS DOCTRINE TO NEWS DOCUMENTARIES
87
Our assumption of the propriety of the FCC's current practice that it may make rulings whether particular programs violate the fairness doctrine does not lessen our concern as to those rulings; it rather enhances the need for careful scrutiny, particularly where, as here, a ruling is challenged on the ground that it displaces the judgment entrusted to the broadcast journalist.
A. The Function of the FCC
88
The principal controversial issue the Commission identified for the 'Pension' program is 'the overall performance of the private pension plan system.' In NBC's submission, the focus of the program was the existence of abuses, of 'some problems in some pension plans.' While one understands NBC's point as made, it might be refined as a statement that NBC was engaged in a study in abuses and did not separately examine how pervasive those abuses were. On what basis did the Commission reject NBC's position, and accept AIM's view that the point of the program was the performance of the common run of pension plans?
89
The staff ruling of May 2, 1973, said this (p. 11):
90
The Pensions program thus did in fact present views which were broadly critical of the performance of the entire private pension system and explicitly advocated and supported proposals to regulate the operation of all pension plans. Your judgments to the contrary, therefore, cannot be accepted as reasonable.
91
One is struck by the palpable flaw in the staff's reasoning. The staff actually put it that because the staff found as a fact that the program was broadly critical of the entire private pension plan system, NBC's contrary judgment 'therefore' cannot be accepted as reasonable. The flaw looms the larger, in that it appears in the ruling of the staff of an agency operating under the Rule of Administrative Law. Under that Rule, agencies daily proclaim that their findings of fact must be upheld if reasonable and if supported by substantial evidence, even though there is equal and even preponderant evidence to the contrary, and even though the courts would have found the facts the other way if they had approached the issue independently.
92
The Commission's opinion of December 3, 1973, corrected the staff's error of logic, but it made a mistake of law. It stated (see para. 17, JA 210):
93
The specific question properly before us here is therefore not whether NBC may reasonably say that the broad, overall 'subject' of the 'Pensions' program was 'some problems in some pension plans,' but rather whether the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system. [emphasis added.]
94
Thus the Commission ruled that even though NBC was reasonable in saying that the subject of 'Pensions' program was 'some problems in some pension plans,' in determining that this was the essential subject of the program, its dominant force and thrust, nevertheless NBC had violated its obligation as a licensee, because the Commission reached a different conclusion, that the program had the effect 'in fact' of presenting only on side of a different subject.
95
The Commission's error of law is that if failed adequately to apply the message of applicable decisions that the editorial judgments of the licensee must not be disturbed if reasonable and in good faith. The licensee has both initial responsibility and primary responsibility. It has wide discretion and latitude that must be respected even though, under the same facts, the agency would reach a contrary conclusion.
96
The pertinent principle that the Commission will not disturb the editorial judgment of the licensee, if reasonable and in good faith, is applicable broadly in fairness doctrine matters. It has distinctive force and vitality when the crucial question is the kind raised in this case, i. e., in defining the scope of the issue raised by the program, for this inquiry typically turns on the kind of communications judgments that are the stuff of the daily decisions of the licensee. There may be mistakes in the licensee's determination. But the review power of the agency is limited to licensee determinations that are not only different from those the agency would have reached in the first instance but are unreasonable. 58a
97
In Columbia Broadcasting System v. Democratic National Committee, supra, the Court stressed the wide latitude entrusted to the broadcaster. See 412 U.S. at 110-111 , 93 S.Ct. at 2090 -2091:
98
.............................................................
99
...................
100
* * *
101
Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations.
102
* * *
103
* * *
104
The broadcaster, therefore, is allowed significant journalistic discretion in deciding how best to fulfill the Fairness Doctrine obligations, although that discretion is bounded by rules designed to assure that the public interest in fairness is furthered.
105
While the government agency has the responsibility of deciding whether the broadcaster has exceeded the bounds of discretion, the Court makes clear that any approach whereby a government agency would undertake to govern 'day-to-day editorial decisions of broadcast licensees' endangers the loss of journalistic discretion and First Amendment values. ( 412 U.S. at 120-121 , 93 S.Ct. at 2095 )
106
What is perhaps most striking and apt for present purposes is the figure used by Chief Justice Burger wherein the licensee is identified as a 'free agent' who has 'initial and primary responsibility for fairness, balance, and objectivity,' with the Commission serving as an 'overseer' and 'ultimate arbiter and guardian of the public interest.' 59 [Emphasis added.]
107
Our own decisions 60 amplify these basic propositions. Judge Tamm's opinion for the court in Democratic National Committee v. FCC, 148 U.S.App.D.C. 383 , 460 F.2d 891 (1972) serves as a compendium and a wrap up. That opinion refers to:
108
(1) Mid-Florida Television Corp., 40 FCC 2d 620 , 621 (1964), that the mechanics of achieving fairness 'is within the discretion of each licensee, acting in good faith.'
109
(2) Applicability of the Fairness Doctrine, 29 Fed.Reg. 10416, 40 FCC 598 , 599 (1964):
110
[T]he licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation--as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present such viewpoints, and all the other facets of such programming.
111
(3) The concept that the Commission will 'exercise substantial restraint in this area.' Id.:
112
[T]he Commission's role is not to substitute its judgment for that of the licensee as to any of the above programming decisions, but rather to determine whether the licensee can be said to have acted reasonably and in good faith.
113
(4) This court's other opinions 61 and such references therein as 'the permissive 'reasonableness' standard of the fairness doctrine.' The court therefore concluded ( 460 F.2d at 903 ):
114
Thus, in opinion after opinion, the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine. . . .
115
The range of journalistic discretion is not limited to the issue of how to comply with the fairness doctrine in the details of presenting both (or more) sides of an issue when the issue has been subsequently defined by the Commission. This would be narrow and artificial. In CBS, the Court, in discussing the broadcaster's 'significant journalistic discretion' under the fairness doctrine pointed out that the licensee must consider 'such questions as whether the subject is worth considering' ( 412 U.S. at 111 & n. 9, 93 S.Ct. at 2091 ). 62 And the Court cited with approval a passage, as old as the fairness doctrine itself, wherein the Commission stated that the licensee 'is called upon to make reasonable judgments in good faith on the facts of each situation--as to whether a controversial issue of public importance is involved.' 63
116
Where the Commission has relatively specific rules under the fairness doctrine, as in the personal attack and political editorializing rules, it has a more ample role in determining whether the licensee was in compliance with his obligations. But when the claim is put in terms of the general obligation concerning controversial issues of public importance, there is primary reliance on the journalistic discretion of the licensee, subject to supervision by the government agency only in case he exceeds the bounds of his discretion. This yields as a corollary that if the broadcast licensee was reasonable in his premise, and his projection of the subject-matter of the program, he cannot be said by the supervising agency to have abused or exceeded his sound discretion.
117
The FCC's function becomes that of correcting the licensee for abuse of discretion, as our function on judicial review is that of correcting the agency for abuse of discretion.
118
The Commission in this case agreed that there was wide latitude of journalistic discretion in regard to news and news documentary programs. It said (par. 25), that it 'cannot uphold a patently unreasonable exercise of that discretion which would deny the right of the public to be informed as to both sides of a controversial issue which in fact has been presented by such programming.' The Commission's reference to 'patently unreasonable exercise of discretion' by the licensee, as the standard that warrants agency intervention, captures the spirit of the scope of discretion entrusted to the licensee. We need not dwell on abstract issues such as whether a licensee whose exercise of discretion is unreasonable may validly claim it was not 'patently' unreasonable; this is more a matter of mood than rule. In this case, we think it plain that the licensee has not been guilty of an unreasonable exercise of discretion. Where the Commission may have started on the wrong path in its approach is the place where the Commission undertook to determine for itself as a fact whether 'the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system.' This is not a sufficient basis for overturning the licensee. It is not clear from the Commission's opinion that it also appreciated the need for a finding of abuse of discretion by the licensee in concluding that no controversial issue had been presented. In any event, we are clear that the licensee's discretion was not abused in this respect.
119
On this issue, whether there was an abuse of discretion in NBC's determination concerning the subject matter of the 'Pensions' documentary, the staff--which did see that this was the real issue--proceeded to resolve it adversely to the licensee by concluding that NBC was unreasonable in determining that the subject of the program was some problems of private pension plans. The Commission backed away from that staff conclusion.
120
A substantial burden must be overcome before the FCC can say there has been an unreasonable exercise of journalistic discretion in a licensee's determination as to the scope of issues presented in the program. Where, as here, the underlying problem is the thrust of the program and the nature of its message, whether a controversial issue of public importance is involved presents not a question of simple physical fact, like temperature, but rather a composite editorial and communications judgment concerning the nature of the program and its perception by viewers. In the absence of extrinsic evidence that the licensee's characterization to the Commission was not made in good faith, the burden of demonstrating that the licensee's judgment was unreasonable to the point of abuse of discretion requires a determination that reasonable men viewing the program would not have concluded that its subject was as described by the licensee. 64
121
Here the Commission concluded that the program involved a controversial issue, namely the overall performance of the private pension plan system. If the agency had free rein to make the critical finding we might well support this conclusion as a reasonable exercise of agency discretion. But here the primary discretion was not vested in the government agency but in the licensee. And the agency could not premise any order on a conclusion contrary to that of the licensee unless it was willing and able to take the additional step--which it deliberately avoided--of finding the licensee's conclusion to be unreasonable. 'A conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.' 65
122
The situation here is unlike the case of an agency's review of a fact finding proposed by its hearing officer. In that situation, it is the agency that has the primary discretion, and it may differ with its hearing officer even though his finding is supported by substantial evidence. 66 Even there, where the agency has primary discretion, its 'departures from the Examiner's findings are vulnerable if they fail to reflect attentive consideration to the Examiner's decision.' 67 Certainly in a situation where it is the licensee that has primary discretion, and his judgment as to dominant impact is substantially supported by responsible persons skilled in judging these matters, this must be given attentive consideration before determining the licensee's judgment was unreasonable.
B. The Function of the Reviewing Court
123
When an agency purports to exercise regulatory discretion conferred by Congress, a court reviewing its order generally accords wide latitude to the agency. The court has responsibilities and restraints. Its responsibility is to assure that the agency has not abused or exceeded its authority, that every essential element of the order is supported by substantial evidence, and that the agency has given reasoned consideration to the pertinent factors. 68 The restraint arises out of the consideration that industry regulation has been entrusted by Congress 'to the informed judgment of the Commission, and not to the preferences of reviewing courts.' 69 If an agency has 'genuinely engaged in reasoned decision-making . . . the court exercises restraint and affirms the agency's action even though the court would on its own account have made different findings or adopted different standards.' 70
124
In the case of the fairness doctrine, a reviewing court is under the same injunction against injecting its own preferences as the rule of decision. And so when the Commission, in the exercise of its discretion, affirms the licensee's exercise of its discretion, the role of the court is most restricted. 71 But the court has a greater responsibility than is normally the case, when it reviews an agency's fairness rulings that upset the licensee's exercise of journalistic discretion, both because the area is suffused with First Amendment freedoms 72 and because Congress has determined that the interest of the public, and its right to know, is furthered by giving primary discretion not to the government agency but instead to the regulated licensee. Congress has sharply narrowed the scope of agency discretion--which the court must see is not exceeded--to a government intervention permissible only for abuse of the licensee's journalistic judgment. If the Commission can claim wide latitude in and deference for its exercise of prerogative to overrule and discard the journalistic judgments of the broadcast licensees, the very premise of the legislative structure is undermined.
125
In Judge Tamm's phrase, in another case involving a Commission determination that the licensee violated the fairness doctrine, and aspects of intrusion on the licensee's journalistic freedoms: 'Not only must the Commission take a hard look at the case in this light but so must this court.' 73
126
To restate, even in a fairness doctrine case the court is not given carte blanche or an authority to interpolate its own discretion or judgment as to what should be done by the agency or what should have been done by the licensee. But a court is properly exercising the high judicial function of assuring that agencies respect legislative mandates 74 when it studies the record to make certain that the Commission has not interpolated its own judgment and wrested the primary discretion Congress placed in the licensee, without making the requisite showing of abuse of the licensee's journalistic discretion.
127
C. The Need for Selection Latitude of Broadcast and Investigative Journalism
128
The doctrine that respects licensee determination, if not unreasonable, concerning the issues tendered in a news broadcast, is a matter of concern for the vitality of broadcast journalism generally, and for investigative journalism in particular.
129
The Commission's opinion in this case reaffirmed--
130
our recognition of the value of investigative reporting and our steadfast intention to do nothing to interfere with or inhibit it. See WBBM-TV, 18 FCC 2d 124 , 134 (1969); Hunger in America, 20 FCC 2d 143 , 150 (1969).
131
In Hunger in America, supra, it not only commended CBS 'for undertaking this documentary on one of the tragic problems of today' but it undertook to clarify its policy as to a claim that a licensee deliberately distorted the news, to avoid concern lest its inquiry in that case 'may tend to inhibit licensees' freedom or willingness to present programming dealing with the difficult issues facing our society.' 20 FCC 2d at 150. It reiterated the ruling of ABC, 16 FCC 2d 650 (1969), that it would require extrinsic evidence of e. g., a charge that a licensee staged news events. 'Otherwise, the matter would again come down to a judgment as to what was presented, as against what should have been presented--a judgmental area for broadcast journalism which this Commission must eschew.' 16 FCC 2d at 657-58.
132
In the world of news documentaries, there is inherently an area of 'judgment as to what was presented.' And if its judgment is not unreasonable, the licensee cannot fairly be held faithless to fairness doctrine responsibilities.
133
Investigative reporting has a distinctive role of uncovering and exposing abuses. It would be undermined if a government agency were free to review the editorial judgments involved in selection of theme and materials, to overrule the licensee's editorial 'judgment as to what was presented,' though not unreasonable, to conclude that in the agency's view the expose had a broader message in fact than that discerned by the licensee and therefore, under the balancing obligation, required an additional and offsetting program.
134
The field of investigative exposures, as the Commission has noted, is one in which '[p]rint journalism has long engaged [and] been commended,' 75 and to which broadcast journalism, also part of the press is 'no less entitled.' Even for print journalism, not subject to the extreme time coverage limitations of broadcasters, a requirement like the Commission's would be considered a 'millstone' burdening investigative reporting. We refer to the affidavit supplied to the Commission by J. Edward Murray, associate editor of the Detroit Free Press and immediate past president of the American Society of Newspaper Editors. These are representative excerpts:
135
The whole process of investigative reporting is a complex and sensitive equation involving editors with high purpose and intuition, reporters with skill and courage, and publishers willing to incur heavy expense and the risk of offending both public opinion and advertisers. This equation, as I said, is powered by the drive to correct evils in the society.
136
If we weight the equation with the requirement that the press look for, and report, good wherever it finds and reports evil, we might as well forget investigative reporting. We will have overwhelmed it with the deadly commonplace of things as they are.
137
* * *
138
* * *
139
[I]t would be commonplace newspaper procedure that if an editor decided that some private pensions are flawed or useless, and published a typical expose to this effect, the expose would simply assume that the majority of private pension plans were more or less in acceptable shape. Otherwise, the forces of both law and business would have corrected so obvious a deficiency.
140
* * *
141
* * *
142
The investigative reporter's thrust is against presumed evils in society. If he must always given an equivalent weight to the good (which is now presumed) in the situation he is investigating, his thrust would become so dulled as to be boring--and unread. Newspapers, including the Detroit Free Press, investigate and expose policemen who are on the 'take' in the dope rackets. If an equivalent weight or time must be given to policemen who are not on the 'take', the whole campaign becomes so unwieldy and pointless as to be useless.
143
* * *
144
* * *
145
The suggestion of a positive non-expose, in the wake of an original negative expose, falls of its own weight. No one would read it. It would thus be a waste of space. And it would add one more millstone to the already considerable burden of legitimate investigative reporting. (JA 140-42.)
146
To like effect are affidavits in the record from broadcast journalists. 76
147
The basic point merits emphasis: A report that evils exist within a group is just not the same thing as a report on the entire group, or even on the majority of the group. An expose that establishes that certain policemen have taken bribes, or smoked pot, or participated in a burglary ring, is not a report on policemen in general. It may be that the depiction of particular abuses will lead to broader inferences. Certainly severe deficiencies within an industry may reflect on the industry as a whole. When one bank fails, others may suffer a run. But the possible inferences and speculations that may be drawn from a factual presentation, are too diverse and manifold--ranging, as they inevitably must, over the entire span of viewer predilections, characteristics and reactions--to serve as a vehicle for overriding the journalistic judgment.
148
There is residual latitude in the Commission to condemn the journalist's vision as an unreasonable exercise of discretion. But if the Commission is to condemn a journalist's vision as excessively narrow, it must show that its own vision is broadgauged. Yet here we are reviewing a Commission opinion that says: 'It is difficult to see why a network would devote its time and effort to a program with no broad impact or value.' (Par. 20). But abuses in an industry are of interest to the public, and merit a documentary, if they exist in any significant amount, even though they are not the general rule. Failures on automobiles are an example. Yet this obvious underpinning for an editorial judgment to run a limited expose was not referred to by the Commission.
149
The Commission simply neglected our caution in Healey v. FCC, supra, 460 F.2d at 922 :
150
Petitioner's basic misapprehension here is a confusion of an issue over newsworthiness with a 'controversial issue of public importance.' Merely because a story is newsworthy does not mean that it contains a controversial issue of public importance.
151
The point is fundamental. In a case where NBC has made a reasonable judgment that a program relates to, and the public has an interest in knowing about, the 'broken promise' abuses that its reporters have identified in various private pension plans, and there is no controversy concerning the existence in fact of such abuses, then the balancing of the fairness doctrine cannot permit the intrusion of a government agency to make its own determination of the subject and thrust of the program as a report that such abuses feature private pensions generally, and with such enlargement to a controversial status to burden the reporting with the obligation of providing an opposing view of the escalated controversy.
152
VI. THE PRESENT RECORD SUSTAINS THE LICENSEE'S EDITORIAL
153
JUDGMENT AGAINST A CHARGE OF REQUISITE BAD FAITH
OR UNREASONABLENESS
154
This is the first case in which a broadcaster has been held in violation of the fairness doctrine for the broadcasting of an investigative news documentary that presented a serious social problem. We have already stated that the Commission used an unsound legal standard in reviewing the licensee's exercise of discretion. What result ensues--on the record before us--from application of the sound legal standard?
A. The Issue As to the Issue
155
In law, as in philosophy, the task of ascertaining the sound rule or precept often turns significantly on rigor in the statement of the problem. Nowhere is this more the case than in the application of the fairness doctrine, for in regard to the determination that a program raised a 'controversial issue of public importance,' the first and often most difficult step is 'to define the issue.' 77
156
In holding that 'Pensions' presented views advocating only one side of a controversial issue of public importance, the Commission defined that issue in these terms: 'that issue being the overall performance of the private pension system and the need for governmental regulation of all private pension plans.' (Par. 19).
157
In so defining the issue, the Commission overruled NBC's judgment. NBC was called to answer AIM's complaint that NBC had given a one-sided view of a controversial issue of public importance--in its 'picture of the private pension system of the United States.' 78 NBC responded that 'Pensions' was primarily designed to expose failures found in some private plans rather than to evaluate the overall performance of the private pension system and that the program did not urge any specific legislative or other remedies. 79
158
The controversial 'issue' identified by the Commission reflects a compound of issues--one, whether problems exist in private pension plans generally, and two, whether overall legislation should be enacted to remedy those problems. In aid of analysis, these issues will be discussed separately.
159
In our view, the present record sustains NBC as having exercised discretion, and not abused discretion, in making the editorial judgment that what was presented, in the dominant thrust of the program, was an expose of abuses that appeared in the private pension industry, and not a general report on the state of the industry. If this judgment of NBC may stand, there is no showing of a controversial issue. The staff's ruling that NBC was unreasonable in this judgment was not sustained by the Commission. And in our view, the present record does not establish a basis for the conclusion that the licensee's judgmental conclusion may be set aside as unreasonable and as constituting an abuse rather than a permissible exercise of discretion.
160
1. The description of the program in TV columnist reviews.
161
NBC offered the Commission an exhibit showing the appraisal of some 25 television critics who reviewed the program, appraisals made contemporaneously, in September, 1972, immediately or shortly after the broadcast. Typically, the critical comments were favorable, reporting that the program was an important and worthwhile public news service, 'superlative investigative reporting.' Many noted that most viewers were likely glued elsewhere, as was apparently the case, though perhaps one may take heart from Clarence Peterson's observations in the Chicago Tribune: 'Most viewers will have watched Marcus Welby instead but it takes only a few hard-nosed skeptics to rattle the cage.'
162
More important for present purposes are the reviewers' descriptions of the program. These appear in Appendix B to this opinion. In general, the reviewers' appraisals of the nature of the program are consistent with NBC's editorial judgment. Examples include the Philadelphia Daily News: 'A potent program about pitfalls and failures of some private pension plans of business and unions . . . it was an angry, incisive study that focused on some people who felt cheated by their blind faith in Pensions.' More succinct was UPI: 'Tough study of the failure of some private pension systems.'
163
The note that the program undercut a 'blind faith' in pensions program was struck in a constructive way in reviews like that in the Chicago Tribune: 'Pension administrators may face some hard questions from employees when they get to work this morning. If so, NBC Reports will have done its job.'
164
Other comments cut from a different angle. Thus, the review in Business Insurance put it: 'The program was by no means objective; it could not have been . . . there was just not enough time to do it thoroughly. [Newman did] point out that there were many good pension plans.' The Denver Post said the documentary had 'a disorganized approach' and added: 'Likewise nothing was said about what makes good pension systems work . . . but NBC should be commended for publicizing a condition of social anarchy.' And intervenor AIM brings to our attention that John J. O'Connor in the New York Times has written: 'The NBC program strongly implied that 90 per cent were failures. The title was, 'Pensions: The Broken Promise,' not 'Pensions: Broken Promises." AIM stresses that reviews in the Boston Globe, Chicago Today and Hollywood Reporter, reflected reactions to the program as commenting on the private pension system as a whole.
165
The Commission's opinion dismissed the newspaper reviews. It stated its determination of the question must rest with the program itself, and added (fn. 4): 'Such brief and general one-line summaries provide no information as to what particular views on the subject of pensions may have been presented in the one-hour documentary, and hence are of little value in determining the applicability of the fairness doctrine. . . .'
166
Obviously, television reviews cannot be conclusive, for the obligation of licensees and the Commission to determine fairness doctrine questions is not delegable. The opinion of this court does not depend in any critical measure on television reviews. Yet we are here concerned not with some broad question of fairness doctrine responsibility, but with something that is not only closer to a question of fact--the description of the program--but is a matter on which the reviewer is expected to make an accurate report to the public as his primary task. Even if the Commission believed the reviewer to be wrong, it should have considered whether the review did not have more than minimal value on the issue of the NBC's reasonableness in saying that the subject of the program was that of abuses discovered, of some problems in some pension plans. If this was the primary thrust of the program, as discerned by persons trained to view such programs attentively and report their description to the public, it is a substantial factor--though, we repeat, not a conclusive one--to an agency exercising its surveillance role under correct standards of review. As for the Commission's comment that the brief format itself undercuts any significance for these newspaper reviews, this is belied by the quite different reactions recorded in the different newspaper reviews.
167
2. Application of the correct standard.
168
Had the Commission applied the correct standard of review, the consequence clearly would have been an acceptance of NBC's position as a reasonable statement of the subject of the 'Pensions' broadcast. There were a few explicit statements of views on the overall performance of private pension plans that are of no consequence in terms of fairness doctrine, as will be presently seen. 79a Otherwise, the plain heft of the program was the recitation of case histories that identified shortcomings of private pensions, and various interviews that identified the abuses in more general terms. But effective presentation of problems in a system does not necessarily generate either comment on the performance of the system as a whole, or a duty to engage in a full study. This is plain from our discussion of investigative journalism.
169
The licensee does not incur a balancing obligation solely because the facts he presents jar the viewer and cause him to think and ask questions as to how widespread the abuses may be.
170
The licensee's judgment on an issue of investigative journalism is not to be overturned unless the agency sustains a heavy burden and makes a clear showing that the licensee has been unreasonable, that there has been an abuse of journalistic discretion rather than an exercise of that discretion. We have been presented no basis for sustaining the view that there is such unreasonableness on the part of a licensee who presents undisputed facts--and no party has contended that the abuses identified by NBC do not exist--because it has failed to treat them as a general indictment of a system.
171
B. Comments on the 'Overall' Performance of the Private Pension Plan
172
In previous sections of this opinion we have identified the dangers to broadcast journalism, and investigative reporting in particular, if descriptions of abuses in a system are converted inferentially into a broadside commenting adversely on the overall system.
173
A separate question is presented, however, by the comments in the program that differs from the description of particular evils.
174
1. Adverse comments on overall performance.
175
We examine, seriatim, those passages of the 'Pensions' program that may be taken as adverse comments on overall performance. We need not refine whether a fairness doctrine obligation is generated by this kind of comment, either alone or with some kind of FCC determination. For in this case, as we shall see, NBC provided offsetting material on the overall performance of pension plans. But this discussion will at least identify our concern with some of the problems. As we shall see, some statements are unquestionably to be given a different reading.
176
(1) The short passage spoken by a MAN (Tr. 1), who begins that the pension system is essentially a consumer fraud, and ends by saying it is 'an insurance contract that can't be trusted.' Overall-Adverse.
177
(2) Edwin Newman's statement (p. 2) that the availability of annual reports filed in the Labor Department 'is a meager protection for the twenty-five million Americans who are in private pension plans.'
178
Neither this nor the next sentence, that 'very many of the hopes will prove to be empty' says that all, or even most, of the 25 million Americans will be unprotected. The statement that the mere filing of the reports is meager protection hardly seems controversial, as to the 'very many' whose pension hopes will be lost by e. g., inability to meet stringent vesting provisions.
179
(3) Herbert Dennenberg, at Tr. 4: Paragraph ending 'most pension funds are inadequate.' This is Overall-Adverse--Arguable.
180
(a) Mr. Dennenberg says that those who retire under the plans typically receive only a thousand dollars a year, which is inadequate even with social security. This is a general comment, but we do not see what has been identified as a controversial issue. AIM's complaint of November 27, 1972, stresses:
181
More than 5 million retired employees are receiving benefits from them [the plans] to the tune of about $7 billion a year.
182
This datum in AIM's complaint palpably confirms rather than contradicts $1,000 as a typical figure. 80 But if there is a controversial issue here which requires reference to AIM's datum, then it should be noted that this very fact was brought out on the 'Pensions' program by Mr. Russell Hubbard of the National Association of Manufacturers (see Tr. 18).
183
(b) Whether a $1,000 annual amount is 'adequate even with social security,' is a value question.
184
The complaint of inadequacy of pensions is also, perhaps, one meaning that might be given to the caption of 'broken promise'--if one posits that there was a promise of an 'adequate' retirement income. There is plainly no unreasonable abuse of discretion for the licensee to determine that the complaint of 'inadequacy,' though surfacing in the program, is simply not the main thrust of the program, which basically turns on whether pension plans do pay out the amounts that were held out to the employees when their work was done, and if not, why not. The FCC, disagreeing with its staff, has held the fairness doctrine would be both unworkable, and an intolerably deep involvement in broadcast journalism, if every single statement, inference, or sub-issue, could be built up into a requirement of countering presentation. 81
185
(c) Mr. Dennenberg also says that over half the people will have nothing at all from pension plans. See also Tr. 5: 'There have been studies that indicate that most people won't collect.' Under current plans, pension rights depend on a combination of longevity, endurance in specified employment for a minimum vesting period, and lack of termination of the plan, and Mr. Dennenberg describes this as 'an obstacle course.'
186
Again AIM does not contradict the basic fact asserted by Mr. Dennenberg. Its complaint compares 5 million receiving pensions with 30 million workers now covered. But it does not assert that the number who worked under pension plans but have failed to qualify for pensions stands below 5 million. And Mr. Dennenberg's statement is not too different in impact from one in a Washington Post article that AIM lauds as balanced journalism. 82 Obviously a greater burden would have to be met by the FCC in identifying the existence and nature of a controversial issue of importance.
187
(4) Senator Harrison Williams (Tr. 4-5). Following a statement by Mr. Newman that many plans have restrictions and exlusions buried in fine print, comes Senator Williams' comment that the plans 'suggest the certainty of an assured benefit upon retirement' which gives 'a sense of false security.'
188
Newman: Senator, the way private pension plans are set up now, are the premises real?
189
Williams: The answer is, they are not.
190
Senator Williams enlarges that he wants descriptions of the realities of plans that are clear and that do not require a lawyer.
191
Here again we have a general comment on the plans, that the eligibility requirements are not clearly identified. But we do not see wherein this comment has been identified by AIM, the Commission or its staff, as inaccurate, or as presenting a controversial issue.
192
(5) Victor Gotbaum (Tr. 12).
193
In these four lines appears: 'Pensions in the private area are a mockery.' Overall-Adverse.
194
(6) Edward Kramer (Tr. 12-13): Mr. Kramer and Mr. Gotbaum identify the feelings of people who have retired only to find they are living in squalor. These people, says Mr. Kramer, feel 'cheated by the pension system, cheated by social security.' This is essentially a complaint of the inadequacy of amounts of payments, rather than denial of pensions. See comment as to Mr. Dennenberg under (3).
195
(7) Mr. Ralph Nader (at Tr. 18): 'I think time is running out. On the private pension systems. And it [sic] its abuses continue to pile up, and if its enormous popular disappointments begin to be more and more revealed, it might collapse of its own weight, and social security will have to take up the slack.' Overall-Adverse.
196
2. Favorable comments on overall performance.
197
Toward the conclusion of the program, comments were made, by Messrs. Hubbard, of the National Association of Manufacturers, and Anderson of the Bank of America, which the Commission recognized as generally favorable to the performance of the private pension plan system:
198
HUBBARD: Over a good number of years, the track record is excellent. It's unfortunate that every now and then some of the tragic cases make the newspapers and the headlines. But it's question of perspective and balance. When you consider that there are thirty million people covered by the plans, that there are five million people receiving about seven billion dollars in benefits. I think that's a pretty good record. That's not to say that there aren't a few remaining loopholes that need closing but we ought to make sure that we don't throw out the baby with the wash water. (Tr. at 18.)
199
ANDERSON: You must remember that the corporation has set this plan up voluntarily. They have not been required by law to set it up. (Tr. at 18.)
200
ANDERSON: These pension plans are a part of a frings benefit package. Like hospitalization insurance and so forth, but it's still a voluntary thing on the part of the corporation. (Tr. at 19.)
201
NEWMAN: This has been a depressing program to work on but we don't want to give the impression that there are no good private pension plans. There are many good ones, and there are many people for whom the promise has become reality. That should be said. (Tr. at 19.)
202
Moreover, Mr. Newman, earlier in the program, made specific reference to some generally good pension programs operated by Teamsters Unions:
203
NEWMAN: . . . [I]n most respects, the pension programs run by the Chicago teamsters union locals are among the best. Benefits are generous and a teamster can retire as early as age fifty-seven. (Tr. at 9-10.)
C. Reasonable Balance
204
As the foregoing shows, there were a handful of comments on 'overall performance' of the private pension plan system. Some were favorable, more were adverse, but there was adequate balance of both sides of that issue and a reasonable opportunity for presentation of both sides of that issue. The fairness doctrine 'nowhere requires equality but only reasonableness.' Democratic National Committee v. FCC, supra, 148 U.S.App.D.C. at 397 , 460 F.2d at 905 . On this aspect of the program, the FCC did not say, and in our scrutinizing review we do not consider it could rightfully say, that the licensee had failed to provide a reasonable opportunity for the presentation of contrasting approaches.
205
We repeat that Mr. Hubbard of N.A.M. brought out the fact given primary stress in AIM's complaint--that 5 million retirees were receiving $7 billion under private pension plans. As for AIM's notation that only 1 percent of pension plans have been terminated, while this precise statistic was not mentioned by Mr. Hubbard, he made the basic point that the overall track record is excellent, and the question is one of perspective and balance.
206
D. The Non-Controversial Nature of the Issue Whether Some Reform Legislation Should Be Enacted.
207
The FCC concluded that the 'Pensions' program 'supported proposals to regulate the operation of all private pension plans.' NBC does not deny, and it would be patently unreasonable for NBC to deny, that it broadcast its view that there was a need for legislative reform. We refer to Edwin Newman's concluding paragraph, in which he capped his notation that the situation involved various technical problems (portability, funding, insurance, fiduciary relations) by saying (Tr. 20):
208
These are matters for Congress to consider and, indeed, the Senate Labor Committee is considering them now. They are also matters for those who are in pension plans. If you're in one, you might find it useful to take a close look at it.
209
Our own conclusion about all of this, is that it is almost inconceivable that this enormous thing has been allowed to grow up with so little understanding of it and with so little protection and such uneven results for those involved.
210
The situation, as we've seen it, is deplorable.
211
An entirely different problem is presented by the Commission's conclusion that there was a controversial issue in 'the need for governmental regulation of all private pension plans.' The Commission stressed (para. 19) that at the time of the program 'Congress was engaged in a study of private pension plans and considering proposed legislation for their regulation--legislation which was opposed in whole or in part by various private and public groups and spokesmen.'
212
The fairness doctrine would require that when a controversial bill is pending, if advocates of its passage have access to a licensee's facilities, so must opponents. 83 But the Commission wholly failed to document its premise that there is a controversial issue in the assertion that there is a need for some remedial legislation applicable generally to pension plans. The record does not support the Commission's statements in its opinion (at para. 16, 23):
213
. . . NBC does not dispute the Bureau's findings that at the time the 'Pensions' program was broadcast the overall performance and proposed regulations of the private pension system constituted a controversial issue of public importance within the meaning of the fairness doctrine. 3
214
* * *
215
* * *
216
NBC does not dispute that there are many private and public groups and spokesmen who oppose the view that the overall performance of the private pension system is so 'deplorable' as to require remedial legislation.
217
There was no occasion for NBC to reply to a claim that was never made. AIM's complaint to the FCC dated November 27, 1972, made no reference whatever to a stand on legislation as a controversial issue; it said criticism of pension plans was such an issue. AIM's letter to NBC dated December 6, 1972, stated that it was struck by a reference in NBC's letter to the FCC that it had concluded that a program on pensions would be timely in view of Senate Reports 92-1150 and 92-1224. AIM added that this bill was opposed by some labor unions, the Chamber of Commerce and the NAM. AIM added: 'While your program did not endorse any specific legislative proposal, it did emphasize the need for new regulatory legislation and it pointed out that the Senate Labor Committee had the matter under consideration.' From this circumstance, and the fact that Senator Schweiker had inserted the transcript of the Pensions program in the Congressional Record for October 3, 1972, as dramatically showing the need for pension reform, 84 AIM evolved a contention this was a program 'inspired by a contested legislative proposal' and presenting one side of that contest. Neither the staff nor the Commission supported AIM's efforts at such extrapolation or extreme conjecture. 85
218
This case does not involve any controversial issue derived from favoring certain specific proposals under consideration by Congress. 86 And AIM did not contend before the FCC that at the time of the broadcast there were any significant groups opposed in principle to the idea of remedial legislation. Since NBC was not called on to dispute what was not asserted, the staff's statement is lacking in support and too lifeless to be a basis for a key Commission premise.
219
AIM transmitted a Washington Post article on pensions as one 'exemplifying good journalism.' In certain respects, the Post article, which recites the case of Stephen Duane (A&P) and others, and states these are not simply isolated horror stories (see fn. 82, supra) resembles the NBC program. In other respects it is different, for the Post article does undertake to examine and analyze the different specific legislative proposals made, and the arguments for and against, including 'strong business and Nixon administration opposition to some of the more stringent reform proposals.' But the fact that the Post ran an article on specific legislative proposals, their pros and cons, does not mean NBC was obligated to do so. In NBC's program Edwin Newman said that the question of particular approaches was difficult, beyond the scope of the program and 'matters for Congress to consider.'
220
We know as judges, as we knew as lawyers, that there is a profound difference between the kind of materials that can be presented effectively in oral form (on argument) and in written form (in briefs).
221
NBC specifically pointed out to the Commission on appeal that the Post article esteemed by AIM had stated: 'The problem, then, is not whether there will eventually be pension reform legislation, but what kind.' 86
222
NBC's letter of July 13, 1973, called the Commission's attention to the wide span of sources supporting some form of remedial legislation. 87 And NBC specifically emphasized that there was no indication of any meaningful view opposing the concept of some reform legislation (JA 163, 171-172):
223
In the 786 page transcript of the most recently published Congressional hearings with respect to pensions, in which 35 witnesses testified on all sides with respect to pensions, not one took the position that some kind of meaningful reform (usually mandated by legislation) of the pension system was unwarranted or should not be instituted. (Hearings of Subcommittee on Labor or of the Senate Comm. on Labor and Public Welfare, US Senate, 93rd Cong., 1st Sess., 1973.) Nor is that view attributed to anyone in the Washington Post article on pensions annexed to Mr. Kalish's letter, the article that has apparently been awarded the AIM imprimatur for 'good' journalism (p. 13). (Emphasis in original.)
224
In the light of thie record, it is plain that while the 'Pensions' program recommended that legislation regulating pension plans be passed, it did not address controversial issues, and there is no reasonable basis for invoking the fairness doctrine on this ground.
VII. CONCLUSION
225
The First Amendment is broadly staked on the view that our country and our people--rich in diversity of strains and viewpoint--is best served by widest latitude to the press, as broadening input and outlook, through a robust and uninhibited debate that is subject only to minimum controls necessary for the vitality of our democratic society.
226
The Court has sustained the fairness doctrine in broadcasting as an instance of a necessary control in the public interest. The broadcaster cannot assert a right of freedom of press that transcends the public's right to know. But application of the doctrine must still recognize the enduring values of wide latitude of journalistic discretion in the licensee. And when a court is called on to take a 'hard look' whether the Commission has gone too far and encroached on journalistic discretion, it must take a hard look to avoid enforcing judicial predilections.
227
And so it is that a natural judicial tendency to respond to such conditions as conciliation, and recognition of the other's viewpoint in the broad interest of fairness, must yield to a vigilant concern that a government agency is not to intervene or burden or second-guess the journalist given primary discretion and responsibility, unless there is documentation of unreasonableness on the part of the licensee.
228
The foregoing observations are supported by, and indeed are a distillate of, pertinent decisions--including notably the opinions of the Supreme Court in CBS v. DNC, Tornillo, and Red Lion--all of which have been carefully studied and discussed.
229
Their application to this case convinces us that the Commission did not guide itself by the appropriate restrictive standards. The Commission has not acted in a rigidly bureaucratic manner, and it has in good faith sought to meet its responsibilities under the Act. There are areas where the Commission's duty of surveillance is considerable, and where there have been abuses on the part of licensees. But we are here concerned with the area of investigative journalism, there there is greatest need for self-restraint on the part of the Commission, and for keen awareness of the inhibitory dimension of impermissible intrusion of a government agency. Investigative journalism is a portrayal of evils, and there may be a natural tendency to suspect that the evils shown are the rule rather than the exception. But the question is not the Commission's view of what was broadcast, and what would have been reasonable if it were the Commission's role to determine what should be broadcast, but whether the licensee, who had this rule, had been demonstrated to have maintained an approach that was an abuse rather than an exercise of its discretion.
230
We find no basis for the Commission's conclusion that the need for reform legislation in the pensions field was a controversial issue. There are controversies as to specific proposals, but they were not the subject of the Pensions broadcast.
231
The complaint is made that a more balanced presentation was made in a newspaper article that did consider specific proposals and their various pro's and con's. But there are different strengths and weaknesses in printed and oral presentation, as lawyers and judges well know, and it would be an impermissible intrusion on broadcast journalism to insist that it adopt techniques congenial to newspaper journalism. This approach might well undercut the particular values, of intensity of communication through interviews, that make broadcast journalism so effective in enhancing public awareness. The fairness doctrine--which rests, says Red Lion, on the distinctive characteristic of broadcasting--cannot be applied by the government to alter broadcasting's distinctive quality.
232
We have analyzed the various segments of the 'Pensions' broadcast, and have not found them to justify the Commission's invocation of the fairness doctrine. We also take account of the Commission's statement that its decision was based upon the 'overall impact' of the program. In some fields, the whole may be greater than the sum of its parts--according to the precepts of Gestalt Psychology. In general, however, the evils of communications controlled by a nerve center of Government loom larger than the evils of editorial abuse by multiple licensees who are not only governed by the standards of their profession but aware that their interest lies in long-term confidence. The fairness doctrine requires a demonstrated analysis of imbalance on controversial issues. This cannot be avoided by recourse to a subjective and impressionistic recording of overall impact.
233
This has not been an easy case to decide. But after sorting out all the strands of decision, we conclude that the Commission has not presented a justification sufficient to sustain its order under review. 88 The case will be remanded to the Commission with instructions to vacate its order adopted November 26, 1973.
234
So ordered.
APPENDIX A
NBC REPORTS
PENSIONS: THE BROKEN PROMISE
September 12, 1972
NBC
235
ANNOUNCER: Tonight NBC reports on Pensions: The Broken Promise.
236
MAN: I figure I had twenty-three years seniority filled up, possibly last up until I was in my forty year sometime at least before I retired and then to look back and see it all fallen away. Everything that you planned on. Just seems like a waste of time.
237
WOMAN: There must be thousands maybe millions of them that's getting the same song and dance that my husband got. When they reach their time for retirement there is no funds to pay them.
238
MAN: This man, Hoffa, on there, retired with a one point seven million dollar lump sum pension. And I can't get three hundred dollars a month out of them on there for my retirement.
239
MAN: Where does all this money go that's been paid into these pensions.
240
MAN: The pension system is essentially a consumer fraud, a shell game and a hoax. As a matter of fact, when you say it's a consumer fraud, you pay it an undue compliment, because typically you think of consumer frauds in terms of short transactions, the purchase of an automobile, the purchase of a pair of pants, but with the pension system you really have a long term contract tract that may run fifty or a hundred years that's designed to guarantee the security of our population. Essentially, you have an insurance contract that doesn't perform. You have an insurance contract that can't be relied on. You have an insurance contract that can't be trusted.
241
[Tr. 2]
242
MAN: And I think it's a terrible thing in this country where men who work forty-five years have to eat yesterday's bread. And I don't want to compete on my old age against other old men on old age running down a supermarket aisle to get dented cans and stale breads. I don't want to look forward to it. So I really have nothing to look forward to at sixty-five.
243
(DANCE MUSIC)
244
EDWIN NEWMAN: This is a story about ordinary people with the modest hope to finish their working careers That is a modest hope but it's one that is all too often not realized.
245
* * *
246
* * *
247
NEWMAN: There is a widely held belief in this country that public disclosure is a good thing that it inhibits misconduct and helps to keep people honest. That's why these files are full of pension plans, private pension plans. Under the law, all such plans must submit annual reports on their activities to the Department of Labor. And these annual reports wind up here, roughly thirty-four thousand of them in a building in Silver Spring, Maryland, just outside Washington.
248
The Labor Department has the right to audit them and to a limited extent, where wrongdoing is discovered, the government may prosecute. Also, the reports are available to anybody who asks to see them, but as it works out that is a meager protection for the twenty-five million Americans who are in private pension plans.
249
There are millions of hopes and dreams in these files. If experience is any guide, very many of the hopes will prove to be empty and dreams will be shattered and the rosy promises of happy and secure retirement and a vine covered cottage will prove to be false.
250
Understandably, there's good deal of bewilderment about this and bitterness among those who find nothing where they thought that pension plan payments were going to be. The Labor Department therefore receives in addition to the annual reports of pension plans complaints about them and appeals for help. A lot of these are passed along by members of Congress.
For example:
251
WOMAN: I understood that I was covered under a very good pension plan to which I did not contribute. It was a hundred [Tr. 3] percent paid by the company. But it did mean a lot to me and I had several other job offers which I refused or didn't even consider because I knew I had security to build up for the future.
252
MAN: I started when I was nineteen years old.
253
NEWMAN: Steven Duane (?) used to be a warehouse foreman for the A&P supermarket people in New Jersey. Eighteen months ago the A&P closed the warehouse and discharged the men who worked there. Duane lost all his years of pension credits.
254
DUANE: . . . in my old age I would be happy and secure in the pension and the benefits that I thought I had with the A&P.
255
WOMAN: At the end of these fifteen years, the company was bought out and the new owners decided to close down the air (?) division so I had less that a week's notice and I was let go as well as everybody else in the air division with no severance pay, nothing, absolutely out in the street, after fifteen years with nothing.
256
DUANE: When the time came to talk about the pension, we were (UNCLEAR) . . . we did have books but nobody took bother in looking at the book, so you feel you're going to be pensioned and that's it. So when they finally told us that the men had to be fifty-five years and over to collect a pension, I was the big loser. I had a brother the same time as me down there. We were the big losers. Thirty-two years of our life was given up and we had nothing, absolutely nothing to show for it.
257
NEWMAN: Duane discovered what a lot of other people have, that it's not easy for a man in his fifties to find a new job. He wound up as a laborer in another warehouse, where he has to compete with much younger men. But no matter how hard Duane works, it's almost certainly too late for him to start building pension credits again.
258
DUANE: It's a terrible experience, an experience I would never like to see anybody else go through. That is why I feel so deep about this pension so that future men won't feel like I do. You wake up in the middle of the night, in a cold sweat, knowing all your work, all your life has gone down the drain. I was just number, number seventy-two was my number. No Steven Duane or a worker. I worked, I remember, I had seventeen years with only four days out. But what does that mean to them? That means nothing. They just turn you out in the street because it's an economy move. [Tr. 4] I personally wrote a letter to the president of the A&P, not yelling at him, I want to discuss some kind of moral obligation. Just me and him, how does he feel, how does he put his head on the teller (?) knowing that you have men walking the streets. I don't know. It's very--It's a deep emotional thing with me. Sometimes I'm ahead of it. Sometimes I'm not. That's my feelings on the thing.
259
RALPH NADER: We've come across in our questionaires and other surveys, some of the most tragic cases imaginable. Where people who worked for twenty-five thirty years and just because of a tiny quirk in the pension plan's fine print, they don't get anything.
260
HERBERT DENNENBERG: When you get to be sixty-five, you're out of work and you need a source of money and that's what a pension plan is supposed to do. Unfortunately, it's woefully inadequate. Over half the people have nothing at all from pension plans and those that do typically have only a thousand dollars a year so even if you have social security, most pension funds are inadequate.
261
SAM ZAGORIA: And there are a lot of people who just believe because something is printed and because they've heard some glowing words about it, that that means it's a lead pipe thing, that they're actually going to have it when they need it. It may not be so.
262
NEWMAN: Many employees form their ideas about pensions by reading the slick brochures that their company or union gives them. Most of these booklets do make a pension seem a sure thing. The many restructions and exclusions are buried in fine print or concealed by obscure language.
263
The Senate Labor Committee has been looking at these brochures as part of its general study of the pension problem. Senator Harrison Williams is chairman of the committee.
264
SENATOR WILLIAMS: I have all kinds of descriptions of plans here and all of them just suggest the certainty of an assured benefit upon retirement. Here's a man--this was from a brewery, sitting relaxed with a glass of beer and checks coming out of the air; well, you see, this gives a false hope, a sense of false security.
265
NEWMAN: Senator, the way private pension plans are set up now, are the promises real?
266
WILLIAMS: The answer is, they are not.
267
[Tr. 5]
268
NEWMAN: So you want to get some reality behind the premise, Senator?
269
WILLIAMS: Exactly. We don't want just these golden general descriptions of what can be expected under the plan; we what clear and precise and understandable descriptions of the reality. The worst example that I've seen is this description that is wholly unintelligible to anybody but an advanced lawyer.
270
NEWMAN: If an employee makes the election provided for, is that the one?
271
WILLIAMS: Yes.
272
NEWMAN: If an employee makes the election provided for in Subparagraph Two of Paragraph B of this Section Six, his monthly pension is determined under either Section Three or Subparagraph One of Paragraph A of Section Four whichever applies, shall be reduced by the percentage set forth in Paragraph C of this Section Six as if the employee has made the election provided for in Subparagraph One of Paragraph B of this Section Six and shall be further reduced actuarily on the basis of the age of the employee and his spouse at the time such election shall become effective. The sex of the employee and the spouse and the level of benefits in the election provided in Subparagraph One of Paragraph B of this Section Six.
273
Maybe I didn't read it very well.
274
WILLIAMS: Well, of course, you understood it though.
275
DENNENBERG: It's almost an obstacle course and the miracle is when someone actually collects with the plan. There have been studies that indicate that most people won't collect. I think we need controls of the same type we apply to insurance companies, your money should be funded so it's going to be there at age sixty-five. Today, it's almost a miracle if it's there at age sixty-five.
276
You have to go to work for an employer, you have to stay with him, you have to stay in good health, you have to avoid layoffs, you have to take your money, turn it over to the employer, hope that he invests it safely and soundly, you have to hope that when you're age sixty-five the employer is still around and he's likely to be in terms of the high mortality of business, so there's almost a sequence of miracles which you're counting on.
277
[Tr. 6]
278
SENATOR RICHARD SCHWEIKER: In one study made by our subcommittee of fifty-one pension plans, covering six point nine million workers since 1950, ninety-two percent of the workers in these plans left without any benefits whatsoever.
279
Workers are losing their pension rights when their companies go bankrupt, merge with other companies or simply go out of business. Workers are losing their pension rights when they are forced to leave one job to find another. We will hear testimony from five retired employees at Horn and Hardart, men and women in their sixties and seventies who have worked an average of forty years or more for the company. Today they are retired and forced to keep working because the company has hit financial difficulty and has had to give up its pension plan.
280
MAN: They called me into the office, they say, Grimes you almost about time for you to go ahead. I say, is that so, well, I said, go out for what. I heard of people retiring, I mean, but they say, well, you know, everybody got to retire. And I say, I didn't know that. I say I'm not ready to retire. I have no money. I say, I owe everybody in Philadelphia which I did. I said,--I told them, I'm not ready to retire.
281
WOMAN: They made me retire on account of the age. They call me in and Mr. Downey(?) was the man over the place at the time. And he said, (UNCLEAR) . . . what I would get and after taking out other compensation, I got fifty dollars and forty-eight cents a month.
282
MAN: They claim that this plan would make us financially independent along with our social security and whatever income we might have saved. They said that this plan, you will not have to worry about anything. Then all of a sudden, they said, we can't pay you anymore, cause the funds has run out. And we have to sell some properties in order to recuperate and get some more funds into this . . .
283
SCHWEIKER: And then that was cut off in October of '71 when they went into bankruptcy.
284
WOMAN: That's right. As Mr. Grimes said, we stop and then we started it again. And they finished it in November 1971 and that was it. I don't get anything at all. Nothing at all. For all those years.
285
MAN: When I retired in '56, I was getting fifty-five dollars in pension money. I could make it with my social security.
286
SCHWEIKER: Had you expected to get a full pension for the rest of your life?
287
MAN: Yes, sir. At the time the pension plan was established, [Tr. 7] we got literature stating what we were going to get and I was satisfied with my share at that time I was satisfied with social security. I suppose I knew I could sort of make it like that. But when it collapsed, I collapsed with it.
288
SCHWEIKER: I have here a booklet called Horn & Hardart Retirement Pension Plan. I assume this was something that was passed out to the employee. No doubt you all have one. I'm sure that it spells out what you expected to get in terms of your benefits. I think significant on the inside back cover, it says: Happy Retirement to you when your turn comes.
289
(LAUGHTER AND APPLAUSE)
290
ANNOUNCER: Pension: The Broken Promise will continue after this message.
291
* * *
292
* * *
293
NEWMAN: This was the Baldwin-Lima-Hamilton Heavy Equipment plant near Philadelphia where thirteen hundred men used to work. They were the sort of people who thought security was important and they had passed up bigger wage increases in favor of a better pension plan.
294
When the plant closed in April, many of the men discovered their pension rights had disappeared.
295
MAN: I heard a lot of guys say, the only reason I stayed with it, for my pension. Now there is no pension. So in order to have all this go down the drain, let's face it, it affected every one of us in one way or another.
296
MAN: What's going to happen to me? Here I am. I'm now fifty-nine years old. When people get up in age and the bottom drops out, like what happened to us. It's a crime. After thirty years and I've got nothing. I mean, it's gone down the drain, thirty years of service. Now I can make up--I can get up into another place and I'll get fifteen years, but that's not going to amount to anything.
297
MAN: So there goes my future plans. I mean, I figure, well, I'd like to put the boys through college, but what can I do now? I'm afraid to.
298
MAN: A younger person does have some chance to do it but at my age, you've made that round, there's no more. In other words, I missed the pension here by about four months.
299
MAN: Everybody was just relying on a pension and if they knew today all the stuff, they would have never stayed there.
300
MAN: Yeah, but George, you realize that there's so many [Tr. 8] people, working people under the impression that they've got a pension coming they don't even realize it they could be in the same fix . . .
301
MAN: . . . complacency. They don't realize that this can happen. They think, oh, I'm doing all right, I've got my paycheck and I've got a pension but he didn't read the fine print.
302
MAN: Well, we felt that way ourselves two years ago.
303
MAN: This is where I thought I had it. I thought when I reached the age of sixty-five or even sixty-two, I'd have approximately forty-five to forty-seven years with the company. And I could turn around and retire at six dollars a month (sic) for every year of service.
304
(CROSS TALK)
305
MAN: As the years went on, that figure would have increased.
306
MAN: I lose faith in a government that allows things like this. Not long ago I was in New York and I saw that inscription on the Statue of Liberty. And it sounded wonderful, you know. Give us your tired and so on. But what it actually said was, give us your labor; get these honkies here where we can put them to work for nothing. That's what it amounted to.
307
NEWMAN: An employee becomes much more expensive to a company once he has been vested, that is guaranteed a pension. This man, Alan Sorenson says he helped to prove that point in a study he did for a large department store chain. After the study was made, so Sorensen says, the company got rid of many long service employees before they could achieve vested pension rights.
308
Sorenson himself was transferred out of company headquarters winding up in Salt Lake City as a store manager, that is Sorenson was a store manager until he was fired last year after twenty-two years of service. He now works as a check-out clerk in this Salt Lake City store.
309
Sorenson told us he had been only a few months away from his vested pension rights.
310
ALAN SORENSON: I definitely feel that I was terminated because I was approaching an age when I would have vesting and they had terminated so many long service employees just prior to terminating me that it all seemed to fall into a very definite pattern.
311
[Tr. 9]
312
INTERVIEWER: And the reasons you were given for being let go? How did they seem to you?
313
SORENSON: They seemed very shallow. Because my past record was such that it was above reproach. I had never had a serious shrinkage in the total time that I had been a store manager. Within the last two or three years before I was terminated they terminated a great many store managers with long service with the company.
314
INTERVIEWER: People who would be approaching the . . .
315
SORENSON: Approaching the age of vesting and retirement. See, by terminating these people before they reached age sixty-five, this cuts their pension benefits back drastically.
316
EARL SHROEDER: Out in Chicago, I worked for twenty-four years for the Kelly Nut Company. And . . .
317
NEWMAN: Earl Schroeder was a corporate executive in a company that had been taken over by a large conglomerate. Several other executives had been fired and Schroeder was worried about what promised to be a substantial pension.
318
He was only six months away from his vested pension rights.
319
SCHROEDER: . . . a retirement plan at age sixty by having put twenty years service with the company. I had put in my twenty years, in fact twenty-four years with the company, put I did not have the age requirement of sixty. I was called from my office to a lunch with one of the executives of Kelly Nut Company, Corn Products Company, our vice president for finance. And informed that henceforth I would no longer be with the company.
320
And I said, Walter, what do you mean? He says, well, Earl, I hired you twenty-four years ago, today I'm firing you. Why? Well, we decided you're too good for the company. And we have no other spot for you.
321
I was at the time assistant secretary of the company, the secretary of the company he was lopped off at thirty years' service. I had a warehouse manager in Albany, George, Howell Free, who was lopped off two months before he would be vested in the plan; he had his time, he had his age, this poor individual became so ill and upset over it that he shot himself, took his own life.
322
NEWMAN: Driving a truck in Chicago wears a man down fast, so the truckdrivers have always been concerned about pensions. And in most respects, the pension programs run by the Chicago teamsters union locals are among the best. Benefits are generous [Tr. 10] and a teamster can retire as early as age fifty-seven. Many feel that after twenty or thirty years behind the wheel, retirement can't come soon enough.
323
MAN: When I was young, I was like a bull, I thought I was big and tough. When I started in the taxicab driving a cab. You sit. Your kidneys, your back, everything just goes. When you get older, same thing, only worse.
324
MAN: Every truck driver I think thinks forward to the day that they're going to retire. And if you got the seniority you think you're well established. You're not thinking about somebody cutting, shooting you down or something. About cutting your pension off.
325
NEWMAN: The trouble is, every teamster local in the Chicago area runs its own pension plan. And it's common practice for a man to be forced to transfer from one local to another, every time he changes his job. From driving to the loading dock, for example. Or from loading to checking weight(?) bills. Or from an outside to an inside job.
326
Sometimes, different groups of teamster members working for the same company or even in the same garage will be in different teamster locals.
327
A teamster must have twenty years of membership in one local to draw a pension. His pension rights are not portable. He cannot take them with him from one local to another.
328
A lot of drivers don't know that until it's time for them to retire. And when they do find out, they can't understand why it should be so.
329
MAN: When they started up this pension plan, I don't think they were strictly honest with the people. I mean, with the people, I mean the truck drivers. They didn't come out in detail and say, you got to have twenty years in this local only that you can get a pension.
330
MAN: As far as I'm concerned, with the amount of years that I have with the company, I should get a full pension. I've got my twenty years with the company, but you got ten years over here, I got eleven years over here.
331
MAN: It's the same thing on there as you would put money in one bank and then go on the west side and put another part of your money into another bank on there and when it comes time to draw it out down there, they tell you, we're sorry out there. You put your money in two banks. We refuse to give it to you. This is the same principle. I have money in two different locals.
332
MAN: Almost twenty-one years with one outfit and I can't [Tr. 11] see why one local can't get together with the other local which I'm in and there's nothing to it, this one has to give me half, the other one gives me half and they make a whole out of it. We'll take care of it. They don't.
333
MAN: The union was to me a brother. And that they wouldn't sell me down the river. They wouldn't deprive me of something on there that was paid for that I was looking forward to be a little technicality on there.
334
MAN: They's taking away by lying to the men, they're taking away by pulling out the fine print in their pension programs. They're taking away by keeping the man ignorant of these pension programs. Of these pension rules.
335
MAN: You cannot change unions. So what do you do then? If you can't change unions, if you have to get another job and you have to go in another union, what are you going to do then? Do you start all over again? Are you going to go ahead and build up time time time? You can't do it . . .
336
INTERVIEWER: What are your plans for the future?
337
MAN: I have no plans. What can I do? I'm just going to have to live out my time and do the best I possibly can with (CROSS TALK) . . . from social security.
338
WOMAN: And what we have in the bank.
339
MAN: That's all I can look forward to. Nothing else.
340
MAN: You've got people driving those trucks that are as high as sixty-eight years old. Sixty-eight years old driving a seventy-two or seventy-three thousand pound unit. With such commodities as explosives, jet fuels, gasolines, oils, plastics, sixty-eight year old man driving this truck. They're not going to last. Somebody's going to get killed. They should have been pensioned about ten or twelve years ago.
341
MAN: That's the way I figured it was going to be. And that's the way we all figured. All the old timers, we figured that if we put in twenty or twenty-five years, when we retired, we would get a pension. But no, because they got cheated they still have to work. But can you imagine a sixty-eight year old man on an interstate with anywhere from seventy-two to seventy-three thousand pounds coming at you?ANNOUNCER: Pensions: The Broken Promise will continue after this message.
342
NEWMAN: The flaws in the private pension system have hurt [Tr. 12] middle class and working class people most. Rich people don't need pensions and the very poor never build up any pension rights they can lose.
343
People don't get the pensions they expect for many reasons. One is that most plans require you to work in the same place for twenty-five or thirty years or more. A lot of people lose their pensions because the plan runs out of money. At this moment the Coal Miners Fund is operating in the red and the Railway Retirement System is running an annual deficit.
344
It's also common for workers to get smaller pensions than they expect, partly because many plans treat highly paid executives much better than lower and middle level employees.
345
Woman get the worst treatment. They seldom work in one place long enough to qualify. And the wife of a pensioner usually gets nothing after her husband dies.
346
What's wrong with the system is most evident to the social worker helping the aged and to a few labor leaders who take an interest in retirement problems.
347
VICTOR GOTBAUM: In the United States we have a magnificent ability to cover up our own diseases especially the disease of big business. Pensions in the private area are a mockery. They're a national disgrace. We know this.
348
MAN: The place where it gets very difficult is with your fairly average middle income class person. Who arrives somewhere between sixty-two and sixty-five at retirement, finds their income cut sometimes as much as seventy percent. These are the folk that I think have the most difficult time. They're sometimes our most difficult client because they're bitter. They're resentful. Our society being what it is, they postpone thinking about old age and its problems. And all of a sudden, they find themselves old and poor.
349
EDWARD KRAMER: These people feel who worked all their lives and let's say they worked thirty-five, forty years, and many of them have worked for one employer for all these years, are, they feel that now that they've retired, they're going to live a better life. They won't have to get up early in the morning. They won't have to work and they'll be able to do all the things that they couldn't do when they were working. And then they find themselves in the position that they have no money, they have no friends. And they live in squalor and they can't do these things. So what--they've really been cheated, cheated by the pension system, cheated by social security, cheated by their employer and they feel very angry at themselves because I think in the back of their mind, they knew this was going to happen. They knew that when the day came that they would retire, they would be [Tr. 13] worse off than when they were working. But they're afraid to admit it.
350
GOTBAUM: They don't eat meat. It's soup. It's lower economy. When they go into the supermarket, something of a thing you discover is that they're special hunters. Their housing situation is an atrocity. We know this. We've now discovered them so we're trying to build housing for the aged. And there's a thrust in this direction. The aged poor. Well, there's not enough housing, there's not enough housing for the aged poor. So that, you'll find that the ghettos, interestingly enough, fascinating areas, the ghettos are composed mainly of the black and Puerto Rican poor and then you'll find spotted throughout aged whites as well as the black and Puerto Rican. This is integration of the poor, integration based on lower economic status.
351
KRAMER: They're kind of waiting around. See, what we've done in our country is create God's waiting rooms all over the country. In Miami, New York and Boston, and Los Angeles, and Philadelphia, where old people kind of wait around for the day to come when they're going to die.
352
MAN: We're living too long. In some area if we could just disappear, it would be very nice to the community at large. But we are not disappearing, we're still here. And we're growing older and older. The age now are ninety and ninety-five is not too uncommon. Even a hundred is not too uncommon. And the result is this, that we have made no plans to retire.
353
MAN: You can't make it on social security, maybe after that twenty percent increase we can. Far as I'm concerned, if you had just say a hundred and half more a month, we could make it pretty good. But now when a bill comes up, you gotta figure how you're gonna meet it. See, if the car breaks down for a hundred dollars, you gotta start skimping or go to the bank--you got two, three hundred left in there and draw one of them out. And that's like pulling teeth.
354
WOMAN: We'll get by, we'll just have to get by, we'll have to eat less. If we had any indebtedness at all, we'd never make it. Makes you feel bad and a lot of times you just sit there and think, at my age, what am I going to do, where am I going to go? (UNCLEAR) . . .
355
MAN: The average person--elderly person who lives on social security, old age assistance and perhaps some money they've been able to save, income runs about a hundred and eighty dollars a month. They've literally got to watch every nickel and penny.
356
KRAMER: Going to a movie is a big expense, taking a bus to a clinic to visit a doctor is a big expense, buying a new pair of shoes is a big expense, getting ill and having to get medicine [Tr. 14] is a big expense. This is where, if there was an adequate pension system in the United States along with social security, some of these problems could be avoided.
357
NEWMAN: Retired people like to live in places that are warm and cheap. There are towns in California and Florida where more than half the adult population is retired. Years ago, older people lived with their working age children. Now, in our mobile society, the elderly have taken to living in trailer parks filled with other retired people.
358
That means retirement is a lot more expensive than it used to be. And the elderly are complaining much more about needing money.
359
The average retired person depends on social security for most of his income, so the big day is the third of the month, the day the social security checks arrive.
360
MAN: Everybody's out, they're standing at the door for the mailman, they grab this little check and they haul off to the bank with it. And we get in line up there to get your check. And we try to let it go till the next day because it takes too much of your time standing there. And then you run off to the grocery store. And the grocery stores all run big sales. On the day they're going to have this--you can get yourself a steak, if you're lucky, for a dollar and a half. But retirement's not, unless you can adapt yourself, it's not for the lively person, somebody that's sickly, he can't enjoy it, there's nothing to enjoy about it. But if you can prepare yourself to accept a quiet life and you and your wife figure what you want to do with yourself during the day, then you can make it.
361
We have fishing and take an umbrella and a couple of chairs and go down to the beach and sit there for the early part of the day before it gets too hot and then we come back and turn the air condition

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/327947. Public record. Not legal advice.