# American Security Council Education Foundation v. Federal Communications Commission and United States of America, Cbs Inc., Intervenor

> Court of Appeals for the D.C. Circuit · June 29, 1979 · 607 F.2d 438

URL: https://www.frixlaw.com/law-library/cases/370474

## Case

- **Full name:** AMERICAN SECURITY COUNCIL EDUCATION FOUNDATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS Inc., Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 29, 1979
- **Citations:** 607 F.2d 438; 197 U.S. App. D.C. 124; 5 Media L. Rep. (BNA) 1193; 45 Rad. Reg. 2d (P & F) 1433; 1979 U.S. App. LEXIS 13578
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Wright, Bazelon, McGowan, Tamm, Leven-Thal, Robinson, MacKinnon, Robb, Wilkey
- **Cited by:** 21 later opinions in the Frix Law Library

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## Opinion text

607 F.2d 438
197 U.S.App.D.C. 124 , 5 Media L. Rep. 1193
AMERICAN SECURITY COUNCIL EDUCATION FOUNDATION, Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
CBS Inc., Intervenor.
No. 77-1443.
United States Court of Appeals,
District of Columbia Circuit.
Argued Dec. 21, 1978.
Decided June 29, 1979.
Robert J. Buenzle, with whom Robert E. Manuel, Washington, D. C., was on brief, for petitioner.
Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Washington, D. C., with whom J. Clay Smith, Jr., Acting Gen. Counsel, James H. Kizziar, Jr., Counsel, F. C. C., and Bruce E. Fein, Attorney, Dept. of Justice, Washington, D. C., were on brief, for respondents.
1
J. Roger Wollenberg, Washington, D. C., with whom Donald C. Langvoort, was on brief, Stephen A. Weiswasser and Roger M. Witten, Washington, D. C., for intervenor.
2
Barry Grossman and Susan J. Atkinson, Attys., Dept. of Justice, Washington, D. C., for respondent United States.
3
J. Tullos Wells, Werner K. Hartenberger, and Gregory M. Christopher, Attys., F. C. C. Washington, D. C., for respondent F. C. C.
4
Before WRIGHT, Chief Judge, and BAZELON, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
5
Opinion for the court filed by TAMM, Circuit Judge.
6
Concurring Opinion filed by J. SKELLY WRIGHT, Chief Judge.
7
Concurring Opinion filed by BAZELON, Circuit Judge.
8
Dissenting Opinion filed by WILKEY, Circuit Judge, with whom MacKINNON and ROBB, Circuit Judges, join.
TAMM, Circuit Judge:
9
We are called upon to decide whether the American Security Council Education Foundation (ASCEF) presented prima facie evidence that CBS, Inc. (CBS) violated the fairness doctrine by giving imbalanced coverage to "national security issues" in its news programming. The Federal Communications Commission (Commission) concluded that because ASCEF did not base its complaint on a particular, well-defined issue, it did not present prima facie evidence of a fairness doctrine violation. We uphold the Commission's decision.
10
* In 1972, ASCEF 1 launched a study to analyze the national television networks' coverage of issues relating to this country's national security. ASCEF originally planned to examine the news programs of all three national networks, but later decided, "in the interests of depth and thoroughness," to examine only one. E. Lefever, TV and National Defense, An Analysis of CBS News, 1972-73, at vi (1974) (TV and National Defense). 2 ASCEF chose CBS because CBS had the largest audience for evening news and the largest number of affiliated stations. Id.
11
ASCEF examined videotapes of all CBS Evening News broadcasts aired during 1972. 3 It transcribed broadcasts of all news reports that it determined were relevant to four topics: 4 United States military and foreign affairs; Soviet Union military and foreign policy; China military and foreign policy; and Vietnam affairs. ASCEF submitted examples of the broadcasts it transcribed to the Commission, which included, Inter alia, news reports of President Nixon's remarks and congressional debate on the Strategic Arms Limitations Treaty (SALT); Defense Secretary Laird's and various Senators' statements on the defense budget; Administration and congressional statements concerning the Trident submarine system and the B-1 bomber; the Democratic Party platform on amnesty for draft evaders; Soviet Union involvement in the Middle East; presidential campaign statements of Senator McGovern concerning, among other things, the defense budget, the space shuttle, and troops in Western Europe, South Korea and Indochina; the President's trip to China; the Vietnam War; and the activities of Chinese school children. 5
12
ASCEF dissected the transcribed news reports 6 into sentences and categorized each sentence into one of three basic positions on national security:
13
Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to Increase its national security efforts;
14
Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate(;) and
15
Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be Decreased.
16
TV and National Defense at 78 (emphasis in original). 7 Using this methodology, ASCEF concluded that 3.54 per cent of the sentences transcribed reflected viewpoint A, 34.63 per cent reflected viewpoint B, and 61.83 per cent reflected viewpoint C. 8 ASCEF filed a fairness doctrine complaint with the Commission against CBS based upon these statistics. In its complaint, ASCEF also alleged that it reviewed CBS's news programming other than CBS Evening News for 1972, as well as CBS's news programming for 1973 and parts of 1975 and 1976, and observed the same disproportionate treatment of national security issues. 9 On the basis of its findings, ASCEF contended that CBS had engaged in advocacy journalism on "basic national security issues." 10 ASCEF asked the Commission to find the existence of a fairness doctrine violation and order CBS to provide a reasonable opportunity for the expression of A viewpoints. 11
II
17
The fairness doctrine provides the framework for insuring that the American broadcast system is operated in the public interest. From its inception, the doctrine's goal has been to promote the "paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning (the) vital and often controversial issues which are held by various groups which make up the community." Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 , 1249 (1949); See Fairness Report, 48 F.C.C.2d 1 , 5 (1974); See also Democratic National Committee v. FCC, 148 U.S.App.D.C. 383, 402 , 460 F.2d 891 , 910, Cert. denied, 409 U.S. 843 , 93 S.Ct. 42 , 34 L.Ed.2d 82 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 363 , 447 F.2d 323 , 333 (1971) (quoting Retail Store Employees Union v. FCC, 141 U.S.App.D.C. 94, 103 , 436 F.2d 248, 257 (1970)). The fairness doctrine achieves its goal through imposing a two-fold requirement on broadcasters. It requires each broadcaster to (1) devote a reasonable percentage of its broadcast time to coverage of controversial issues of public importance, and (2) provide a reasonable opportunity for the presentation of conflicting views on such issues. 12
18
The Supreme Court upheld the constitutionality of the fairness doctrine, 13 despite the general first amendment prohibition on government regulation of speech and of the press, 14 because it furthers the paramount first amendment right of viewers and listeners to receive "suitable access to . . . ideas and experiences." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-90 , 89 S.Ct. 1794, 1806-1807 , 23 L.Ed.2d 371 (1969). The Court justified the fairness doctrine's imposition of limitations on broadcast content on the basis of the scarcity of broadcast frequencies. Id. at 390 , 89 S.Ct. 1794 . Because broadcast frequencies are scarce, not all those who wish to broadcast may do so. In essence, the fairness doctrine recognizes that broadcasters act as public trustees who manage a scarce national resource: 15
19
There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
20
Id. at 389 , 89 S.Ct. at 1806 .
21
Although the Court in Red Lion legitimized the fairness doctrine, it recognized the argument that overly ambitious enforcement could lead broadcasters to reduce coverage of controversial public issues, or to cover those issues blandly, in an attempt to avoid fairness doctrine complaints. 16 See id. at 393 , 89 S.Ct. 1794 ; See generally Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-57 , 94 S.Ct. 2831 , 41 L.Ed.2d 730 (1974). 17 The Court believed this danger was speculative at that time. It warned, however, that the constitutional implications could be reconsidered if the fairness doctrine, in practice, reduced rather than enhanced the volume and quality of coverage of public issues. 395 U.S. at 393 , 89 S.Ct. 1794 .
22
In administering the fairness doctrine, the Commission wisely attempts to avoid unnecessary risk of "chilling" presentations of controversial issues. 18 The Commission is concerned that unduly burdensome regulation will induce broadcasters to decrease vigorous and effective coverage of issues that are the subject of public debate. 19 This result would advance neither the broadcasters' nor the public's first amendment rights. See Fairness Report, 48 F.C.C.2d at 6-9; See also Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d 691 , 694 (1976); Id. at 708 n.13 (Robinson, C., dissenting). The Commission thus exercises its duties under the fairness doctrine with restraint, balancing the various first amendment interests to determine "what best serves the public's right to be informed." Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 102 , 93 S.Ct. 2080 , 36 L.Ed.2d 772 (1973). 20
23
At center stage of the Commission's regulatory scheme is its determination that broadcasters should have maximum editorial discretion in deciding how to fulfill fairness doctrine obligations. See Fairness Report,48 F.C.C.2d at 8-9, 28-31. In the course of presenting its programming, the broadcaster decides what issue has been discussed, whether an issue is a controversial issue of public importance, what views have been or should be presented on the issue, 21 what format or which spokesmen should be used, and how much time should be allotted to discussion of various views. 22 See Applicability of Fairness Doctrine in Handling Controversial Issues of Public Importance (Fairness Primer), 40 F.C.C. 598 , 599 (1964); See also Fairness Report, 48 F.C.C.2d at 9.
24
A viewer or listener who believes that a broadcaster is not meeting its fairness doctrine obligations must first complain to the broadcaster. 23 See Broadcast Procedure Manual, 49 F.C.C.2d 1 , 5 (1974). If the broadcaster agrees to rectify the complaint or explains its position to the satisfaction of the complainant, Commission intervention is unnecessary. See id.; Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696. A viewer or listener who remains dissatisfied may then file a complaint with the Commission.
25
Such a complaint must present prima facie evidence of a fairness doctrine violation. Prima facie evidence consists of specific factual information which, in the absence of rebuttal, is sufficient to show that a fairness doctrine violation exists. 24 Unless the complaint contains such evidence, the Commission will not demand a response to a complaint from a broadcaster.
26
The prima facie evidence requirement is "part of the delicate balance allocating burdens between licensees and complainants": the complainant must produce prima facie evidence of a violation before the broadcaster will be burdened with establishing compliance with the fairness doctrine. Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696; See text Supra at 197 U.S.App.D.C. at --- - ---, 607 F.2d at 444-445 . The Commission explained the reasons for the prima facie evidence requirement in Allen C. Phelps, 21 F.C.C.2d 12 , 13 (1969):
27
Absent detailed and specific evidence of failure to comply with the requirements of the fairness doctrine, it would be unreasonable to require licensees specifically to disprove allegations . . . . The Commission's policy of encouraging robust, wide-open debate on issues of public importance would in practice be defeated if, on the basis of vague and general charges of unfairness, we could impose upon licensees the burden of proving the contrary by producing recordings or transcripts of all news programs, editorials, commentaries, and discussion of public issues, many of which are treated over long periods of time. 25
28
See Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696.
29
In its Fairness Primer, 40 F.C.C. at 600, the Commission set forth the information necessary to establish a prima facie case of a violation. The complainant should submit specific facts to show
30
(1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air ; (3) the date and time when the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints. (Emphasis added; footnote omitted.)
31
See also Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696; Fairness Report, 48 F.C.C. at 19. 26 This court has upheld the reasonableness of these requirements. See Hale v. FCC, 138 U.S.App.D.C. 125, 127-28 , 425 F.2d 556, 558-59 (1970) (per curiam); See also Democratic National Committee v. FCC, 148 U.S.App.D.C. at 399-400 , 460 F.2d at 907-08 . 27
32
If the Commission determines that there is prima facie evidence of a fairness doctrine violation, it will direct the broadcaster to respond to the complaint. See Memorandum Opinion and Order on Reconsideration of the Fairness Doctrine, 58 F.C.C.2d at 696. The Commission finds that prima facie evidence of a violation exists in relatively few cases. During fiscal year 1973, for example, the Commission received approximately 2,400 complaints and determined that only ninety-four, or four per cent, required the filing of a response. See Fairness Report, 48 F.C.C.2d at 8. When the Commission does require a broadcaster to respond to a fairness doctrine complaint, it reviews the response to determine whether the broadcaster's decisions with respect to the issues raised, 28 the views presented, the format and spokesmen used, and the time allotted were made reasonably and in good faith. See Fairness Primer, 40 F.C.C.2d at 599; See also Straus Communications, Inc. v. FCC, 174 U.S.App.D.C. 149 , 156-57, 530 F.2d 1001 , 1008-09 (1976); Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305 , 333, 473 F.2d 16, 44 (1972), Cert. denied, 412 U.S. 922 , 93 S.Ct. 2731 , 37 L.Ed.2d 149 (1973). If the Commission determines that the broadcaster acted unreasonably or in bad faith, 29 it will advise the broadcaster to meet its fairness obligations through additional programming. See Fairness Report, 48 F.C.C.2d at 17.
33
Our function in reviewing a decision made by the Commission at any step of the fairness doctrine complaint procedure is to determine " 'whether the Commission's order is unreasonable or in contravention of statutory purpose.' " Democratic National Committee v. FCC, 148 U.S.App.D.C. at 394 , 460 F.2d at 912 (quoting Neckritz v. FCC, 446 F.2d 501, 502-03 (9th Cir. 1971) (per curiam)). We are mindful that the Commission's task in administering the fairness doctrine is one of great delicacy and difficulty, and that the Commission's experience in this matter accordingly is entitled to "great weight." Columbia Broadcasting System v. Democratic National Committee, 412 U.S. at 102 , 93 S.Ct. 2080 .
III
34
The Commission ruled that ASCEF failed to meet the prima facie evidence requirement because, Inter alia, it did not base its complaint on a particular, well-defined issue. American Security Council Education Foundation, 63 F.C.C.2d 366 , 368 (1977). In dismissing the complaint, the Commission stated:
35
Although the "national security issue" is defined by the complainant as involving "the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R." in other parts of the complaint ASCEF refers to the subject of the study as "national defense and foreign policy issues," "Soviet and Chinese political and military objectives," and "domestic foreign policy." Moreover, the data collected in the accompanying study indicates that the complainant's perceived scope of the issue is much broader, encompassing subjects such as Chinese military and non-military policies, Southeast Asia and foreign relations generally.
36
Id. at 368 (footnote omitted). 30 We affirm the Commission's decision that ASCEF failed to base its complaint on a particular, well-defined issue because (1) the indirect relationships among the issues aggregated by ASCEF under the umbrella of "national security" do not provide a basis for determining whether the public received a reasonable balance of conflicting views, and (2) a contrary result would unduly burden broadcasters without a countervailing benefit to the public's right to be informed.
37
The fairness doctrine, by definition, is issue-oriented. It calls upon broadcasters to provide fair coverage on each controversial public issue discussed in their programs. See text Supra at 197 U.S.App.D.C. at ---, 607 F.2d at 443 ; National Citizens Committee for Broadcasting v. FCC, 186 U.S.App.D.C. 102 , 118, 567 F.2d 1095 , 1111 (1977), Cert. denied, 436 U.S. 926 , 98 S.Ct. 2820 , 56 L.Ed.2d 769 (1978); Green v. FCC, 144 U.S.App.D.C. 353, 355 , 447 F.2d 323 , 328 (1971). A fairness doctrine complaint, therefore, must focus the Commission's attention on a particular, well-defined issue on which coverage was allegedly imbalanced. 31 Presentation of such an issue is a prerequisite to a determination whether a broadcaster presented a reasonable balance of conflicting views. 32
38
ASCEF contends in this court that "national security" is a particular, well-defined issue. Brief for Petitioner at 7 & n.8, 56-57. ASCEF defines the issue, however, by aggregating under a broad umbrella concept individual issues that it determined were relevant to national security. As ASCEF stated in the material it submitted to the Commission, the study which formed the basis of its allegation of imbalance "deal(t) with many U.S. foreign and defense policies" and various "national security issues facing the United States." TV and National Defense at vi, 3. The broadcasts ASCEF studied involved issues as distinct as America's commitment to the North Atlantic Treaty Organization (NATO), detente with China, SALT, amnesty, the Vietnam war, and America's response to the Soviet Union's role in the Middle East. 33
39
The issues that ASCEF joined together may have relevance, in varying degrees, to the umbrella concept of "national security." However, their relationships to one another are tangential. The issues analyzed by ASCEF arose independently in time and were largely discussed and acted upon on an independent basis. Consideration of the issues together, rather than individually, would not provide a basis for determining whether the broadcaster presented a reasonable balance of conflicting views because views on any one issue do not support or contradict views on the others.
40
Under ASCEF's approach, a broadcast containing a view on SALT, for example, is expected either to conflict with or support a broadcast containing a view on amnesty for draft evaders, detente with China, or the Vietnam war. According to ASCEF, a news report quoting Defense Secretary Laird's statement that he "could not support the (SALT) agreements if the Congress fails to . . . (move) forward on the Trident System, (and) on the B-1 bomber" 34 conflicts with a news report stating that "(f)or those who have evaded service (the Democratic platform called for) 'amnesty on an appropriate basis' after the war when the prisoners are returned." 35 ASCEF contends that each of these broadcasts also conflicts with a news report concerning the President's trip to China, in which Walter Cronkite stated that the "gracious hospitality of our hosts here cannot disguise the fact (that) the weapons they are so proudly displaying . . . have taken uncounted numbers of American lives in Korea and Southeast Asia." 36 A view in any of these broadcasts, however, contributes little, if anything, toward informed evaluation of a view in any other. An average viewer realistically could not be expected to perceive such a nexus among them.
41
We do not hold that a fairness doctrine complaint may never be based upon an issue that consists of separately identifiable sub-issues. 37 Whether the fairness doctrine should be applied to a general "umbrella" issue or to the separate issues comprising it depends on what should be done to insure that the public is adequately informed. 38 See Democratic National Committee v. FCC, 148 U.S.App.D.C. at 402 , 460 F.2d at 910 ; Green v. FCC, 447 F.2d at 329, 333 . An issue is not a "particular, well-defined" issue for fairness doctrine purposes if the separate issues comprising it are so indirectly related that a view on one does not, in a way that would be apparent to an average viewer or listener, support or contradict a view on any other. When an "umbrella" issue is that ill-defined, there is no reasonable basis for determining whether the public is receiving balanced conflicting views. On the other hand, if in the Commission's expert judgment, an issue contains two or more component issues so obviously related that average viewers or listeners can be expected to believe that expression of a view on one supports or refutes a view on another, the "umbrella" issue can serve as the basis of a fairness doctrine complaint. In this connection, we emphasize that it is, after all, the rights of viewers and listeners that are paramount, not the rights of broadcasters or expert complainants. See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390 , 89 S.Ct. 1794 .
42
If ASCEF had focused on individual issues, it could have identified the actual views expressed 39 instead of superimposing artificial A, B and C viewpoints on the broadcasts studied. The Commission then could have determined which, if any, issues had been the subject of imbalanced coverage, and could have ordered a meaningful remedy in the form of additional coverage if necessary. If a broadcaster fulfills fairness obligations on the various issues relating to national security, the fairness doctrine's goal of promoting informed public opinion will be served.
43
Acceptance of ASCEF's contention that "national security" is a particular, well-defined issue would not only render impossible a determination of reasonable balance Vel non, but also would place a substantial burden on the broadcaster. A broadcaster must have a clear understanding of the issue forming the basis of a complaint in order to assess its compliance with the fairness doctrine. Unless a broadcaster can recognize the issue "with precision and accuracy," American Security Council Education Foundation, 63 F.C.C.2d at 368, proof of compliance with the fairness doctrine would require the production of "recordings or transcripts of all news programs, editorials, commentaries, and discussion of public issues, many of which are treated over long periods of time." Allen C. Phelps, 21 F.C.C.2d at 13; See note 25 Supra. The Commission has wisely determined that imposition of such onerous burdens on broadcasters would, in practice, defeat the policy of "encouraging robust, wide-open debate." 21 F.C.C.2d at 13; See text Supra at 197 U.S.App.D.C. at ---- - ----, 607 F.2d at 444-445 .
44
The burdens that would have been associated with response to the complaint in this case are particularly apparent. CBS could have had to review all of its news programming relevant to national security over at least a year's time. It then would have had to determine whether the relevant news broadcasts, taken as a whole, were reasonably balanced. It would have been virtually impossible to know which broadcasts should be included as relevant to national security, 40 or how views discussed on the myriad issues involved in the broadcasts should be tallied to measure "balance" under the fairness doctrine.
45
Adoption of ASCEF's notion of the particular issue requirement would create a precedent that might well have a serious effect on daily news programming, by inducing broadcasters to forego programming on controversial issues or by disrupting the normal exercise of journalistic judgment in such programming that is aired. The broadcasting of daily news demands the exercise of enormous editorial skill. The news editor must select from the vast array of the day's fast-moving events those which, in the limited amount of broadcast time available, should be presented to the public. In attempting to comply with the fairness doctrine as interpreted by ASCEF, an editor's news judgment 41 would be severely altered. An editor preparing an evening newscast would be required to decide whether any of the day's newsworthy events is tied, even tangentially, to events covered in the past, and whether a report on today's lead story, in some remote way, balances yesterday's, last week's or last year's. Because this requirement would not promote the public interest, the limitations on the exercise of news judgment would be unjustified. 42
IV
46
ASCEF's blunderbuss approach to the fairness doctrine would contribute little, if anything, toward achievement of the fairness doctrine's goal while posing all the dangers associated with government administration of fairness obligations. The prima facie case requirements are designed to weed out those complaints that would burden broadcasters without sufficient likelihood that a countervailing benefit will be gained. We uphold the Commission's determination that ASCEF failed to present prima facie evidence of a fairness doctrine violation. 43 The Commission's decision that no action was warranted on the complaint is therefore
47
Affirmed.
J. SKELLY WRIGHT, Chief Judge, concurring:
48
This court today affirms a decision of the Federal Communications Commission (FCC) that dismissed a fairness doctrine complaint filed against CBS, Inc. and its owned and operated stations. 1 The complainant, petitioner here, is the American Security Council Education Foundation (ASCEF), "a non-profit educational institution whose purpose is to improve public understanding of facts and issues relating to the national security of this country." 2 The gravamen of ASCEF's charge against CBS is that broadcasts of the CBS Evening News during 1972 possessed a decidedly "dovish" 3 slant on matters pertaining to "national security." 4 To remedy this perceived shortcoming, ASCEF asked the FCC to require CBS to afford a reasonable opportunity for the presentation of contrasting views on national security. 5
49
The FCC, in dismissing the complaint, decided Inter alia that ASCEF had failed to make out a Prima facie case under the fairness doctrine 6 because "national security" was not defined with sufficient precision in the complaint to allow for a reasonable response from CBS. 7 A divided panel of this court disagreed and ordered that the FCC demand from CBS a response to the complaint. 8 Because, in my view, the panel was inattentive to the First Amendment values at stake in this case, 9 incorrect in its determination that national security is a sufficiently precise issue to make out a Prima facie case, 10 and indifferent to the shortcomings of the ASCEF study that underlay the complaint, 11 I concur in this court's En banc Decision to affirm the FCC. I write specially, not to detract from Judge Tamm's opinion, but to lend emphasis to certain of his arguments.
I. THE FIRST AMENDMENT BACKDROP
50
Under the fairness doctrine, 12 a broadcaster is required to present coverage of issues of public importance and, on those issues of public importance that are controversial, to see to it that the coverage fairly reflects differing viewpoints. 13 When the FCC receives a complaint alleging that a broadcaster has ignored its obligations under the fairness doctrine, the Commission must first decide whether the charge is sufficient to require a response from the broadcaster. 14
51
In making this determination, the FCC must exercise its discretion with great care and with due regard for First Amendment interests. 15 If the Commission were to serve merely as a conduit for all charges made against broadcasters under the fairness doctrine, an unfortunate and unacceptable burden would be placed on communications. 16 Broadcasters, aware that the slightest perceived transgression of the doctrine might trigger a demand for a resource-consuming response on their part, would be loath to run the risk. 17 Timidity might well supplant curiosity as the operative journalistic ethic in radio and television coverage of public events.
52
To preclude the possibility of such a chilling effect, and the consequent undermining of the First Amendment interest in the public's "suitable access to social, political, esthetic, moral, and other ideas and experiences" 18 provided by broadcasters, the FCC has constructed a formidable procedural barrier, but one that is not insurmountable to complainants with legitimate fairness doctrine claims. 19 The barrier is the traditional and time-tested device of the Prima facie case, 20 one element of which is the identification of an issue of sufficient specificity to allow for a direct and efficient response from the broadcaster. The requirement that complainants make out a Prima facie case before the FCC will demand that the broadcaster respond is a sign of humility; it represents a conscious shrinking back, as it were, by a government agency whose regulatory domain overlaps that of the First Amendment. 21
53
Petitioner, however, portrays the requirement of the Prima facie case in a different light. Rather than a safety screen around protected speech constructed by a responsible governmental organ, imposition of the requirement in this case is labeled "administrative fiat." 22 Because petitioner conceives of its study of the CBS Evening News as "the most thorough scientific analysis of a network news operation ever undertaken by anyone at anytime since the advent of television," 23 it apparently cannot fathom how its complaint could fail to meet the FCC's procedural test. ASCEF's logic is simple: because its study was good, the procedural test that it flunked must be bad. The argument is not original; it has been employed throughout the ages by students claiming adequate preparation who have nonetheless failed an examination.
54
I am not oblivious, nor is this court, to the pathos surrounding petitioner's observation that the substantial time and resources devoted to the study have gone largely for naught. 24 Indeed, as I shall argue below, 25 there is a place under the fairness doctrine for the type of extensive study petitioner attempted to undertake here. Yet just as academic excellence cannot be compromised by the plaintive cries of errant students, speech cannot be regulated in accordance with the demands of a well-meaning foundation that has expended substantial resources on a study that, whatever its merits otherwise, was ill-conceived in terms of the requirements of the fairness doctrine. 26
II. NATIONAL SECURITY AS AN ISSUE
55
ASCEF's study that formed the basis of its fairness complaint found that the CBS Evening News did not adequately portray differing viewpoints on national security during 1972. The FCC, in dismissing the complaint, largely relied on the lack of specificity in the notion "national security." The amorphousness of national security, argued the FCC, defies any attempt to cast the notion with sufficient specificity to make out a Prima facie case under the fairness doctrine. Further, to require CBS to respond to such an ill-defined charge would, as shown above, threaten to chill future communications.
56
It is difficult to dispute the FCC's conclusion, although my dissenting colleagues manage to do so. That "national security" means different things to different people is incontestable and, in this fairness doctrine context, fatal to petitioner's complaint. To some, national security means devoting the bulk of our national resources to creating the ideal society one, that is, whose economic dynamism and social amenities are attractive to citizens of foreign powers and thus likely to channel the currents of world ideology in our direction. To others, this is nonsense: national security translates literally into military superiority. Still others take a more discriminating view and seek to arrive at a secure compromise between domestic improvements and military might. 27 And within each of these conceptions of national security there is a sufficient number of allocational configurations to correspond to the multiplicity of individual visions of a "secure" nation. 28
57
Thus the possibilities surrounding national security are endless. The term is not susceptible to the gross reductionism of a "viewpoint analysis," such as that employed by petitioner, 29 that is cast in the finite mold of more, less, or the same. 30 If petitioner's world is populated by "hawks," "sparrows," and "doves," 31 the real world, as I understand it, is an aviary of inexhaustible variety.
58
One need not rely exclusively on ordinary usage to underscore the indeterminacy of national security. A cursory glance at petitioner's papers before this court also illustrates the point. ASCEF's complaint before the FCC, for instance, described national security variously in terms of "the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R."; 32 "Soviet and Chinese political and military objectives"; 33 and "domestic foreign policy." 34 Its brief on appeal, moreover, refers in places not to the national security issue but to "national security Issues." 35 Whether or not this apparently conscious wavering is acceptable to the large number of academicians who commented favorably on the ASCEF study and whose names surfaced conspicuously in petitioner's argument is irrelevant. 36 Of relevance is the undeniable truth that such sloppiness is not to be countenanced in the First Amendment context, a context that requires even state legislatures and the Congress of the United States to act with specificity and to avoid vague or overbroad incursions that could possibly chill speech. 37
59
I should hasten to point out that the insufficient specificity of national security is not only a patent defect, as ordinary usage and petitioner's usage in this case attest, but a latent one as well, in the sense that national security By its very nature simply cannot be reduced to a definable core. National security is not, to be sure, a mere shibboleth. Nor is it a trite codeword. Codewords Ex hypothesi have a single meaning to those with access to the code. Rather, national security defies precise definition because it is preambulary in nature. 38 And like all preambulary language, it is aspirational; different people rely on it and use it in different ways. Preambulary terms defy reductionist attempts at specificity because each such term represents a cluster of ideas, not all of which are in harmony and some of which may well be in rank discord. However commendable preambulary vagueness is in its proper context, to attack protected speech with such vagueness is as unthinkable as attempting to enforce a preamble as positive law.
III. THE ASCEF STUDY
60
The ASCEF study that underlay the fairness complaint itself merits comment. We have already seen that the notion around which the study was constructed national security is too indeterminate to support a Prima facie case under the fairness doctrine. In addition, there are methodological deficiencies that render the present study useless for purposes of a fairness doctrine complaint.
61
The study of the CBS Evening News during 1972 aimed to achieve objectivity by imposing an analytical trichotomy on the content of the news broadcast. The trichotomy was constituted of three "viewpoints." In the words of the study,
62
Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to Increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be Decreased. * * * ( 39
63
The central finding of the study was that Viewpoint A was significantly underrepresented in the CBS Evening News, and Viewpoint C overrepresented. 40
64
The inherent flaw in this breakdown of viewpoints is readily apparent, and has been examined by the majority opinion. In a two-party system such as ours, it is absurd to cast the position of the sitting government as a "norm" from which departures presumably ought to occur in equal numbers to the left and right.
65
Consider the chronological context of the present study. In 1972 President Nixon was opposed in his bid for reelection by a man, Senator McGovern, of largely opposite views on major issues. 41 It can be assumed that CBS devoted much of its news coverage to the election. If the network gave equal coverage to both camps, it would likely have meant that Viewpoint B and Viewpoint C would have been equally represented, and Viewpoint A largely unrepresented precisely the "biased" result detected by the ASCEF study. Yet CBS, in this event, would in fact have been doing its job fully in accordance with the Supreme Court's admonition in Red Lion Broadcasting Co. v. FCC that "(i)t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 42 The public, that is to say, would have received fair and balanced election coverage; yet CBS would have run afoul of ASCEF's study and, if petitioner and the dissenters would have their way, afoul of the fairness doctrine as well.
66
The centerpiece of ASCEF's tripartite viewpoint analysis the equation of the Nixon Administration's statements with the Terra firma of the American political center is thus empirically unsound. How the analysis can lead to the "objective" results purveyed by petitioner is therefore unclear. Had 1972 been the final year in the first administration of Hubert Humphrey, whom President Nixon defeated in 1968, the results of ASCEF's viewpoint analysis might well have been demonstrably different even had public events and the consequent news coverage been strikingly similar.
67
In addition to the unrealistic and rigid analytical framework imposed on the content of the CBS Evening News, the study contained another disturbing feature. To examine the fairness of CBS's coverage of national security, ASCEF of course had to decide which news items were and which were not of relevance to national security. ASCEF's attempt to particularize this amorphous concept not only further illustrates the extent to which national security does not lend itself to the specificity required to make out a Prima facie case, but also reveals another basic methodological flaw in the ASCEF study.
68
The attempt at particularization began with the identification of the constituents of national security, which, in ASCEF's view were (1) U.S. military and foreign affairs, (2) Soviet military and foreign policy, (3) Chinese military and foreign policy, and (4) Vietnam. 43 Even assuming that ASCEF was correct in confining national security to foreign and military considerations, one can nonetheless detect problems. In this era of triangular diplomacy the basic premise of which from the American standpoint is that improved relations with China can reflect favorably on our position vis-ea-vis the Soviet Union, and vice versa 44 who is to say that ASCEF's four constituent elements of national security correctly reflect the realities of world politics? If the CBS Evening News, for example, had broadcast a favorable report on discipline in the Chinese army, would this necessarily have merited the Viewpoint C characterization it doubtless would have received at the hands of ASCEF? Is it not the case that Chinese military discipline may worry the Soviets more than it worries us, and therefore constitute a point in favor of our national security? If so, should the comment not then have been characterized as Viewpoint A? As this example makes clear, the dynamics of world diplomacy do not lend themselves to the rigid compartmentalization practiced by ASCEF.
69
The problems with the ASCEF study do not end here. How realistically can one draw the lines necessary to delimit the four above-mentioned categories, assuming Arguendo their validity? The category of Chinese military and foreign policy was, in one instance, said by ASCEF to include the following statement of a restaurant owner recently returned to this country from a trip to China:
70
(Chinese children) were only exposed to mainly (Sic ) songs and dances with a touch of revolutionary fervor. The dances, the shows, the music and so on concentrated largely on patriotism, social justice, dedication to work, patience, and above all, selfless service to the public. * * * ( 45
71
If this is a statement on Chinese foreign and military policy, then it would seem, to draw upon one of countless conceivable examples, that a report on the patriotism, dedication to excellence, and backwoods acumen of the Boy Scouts of America would be a statement on American foreign and military policy.
72
The plain fact is that ASCEF was not successful in selecting the news items in a realistic way. Nor can we say that rationality ruled in the absence of realism, for ASCEF furnishes no guidelines on how it selected the news items. Except for the mere assertion of the four rather porous categories themselves, we are left wondering whether the process of categorizing CBS news items was subject to any rational constraints.
73
The many and fatal shortcomings of the ASCEF study are apparent. The question then arises whether any study as ambitious and broadly based as the present one that is, one that attempts systematically to establish patterns of bias in news broadcasting that have existed over a substantial period of time could succeed in the fairness doctrine context, where First Amendment considerations dictate surgical precision in the regulation of communications. I believe such a study can succeed, but it must be shaped to fit the contours of the fairness doctrine rather than expecting the fairness doctrine to conform to its imperatives.
74
First, the study must be structured around a highly specific issue, 46 one that can be defined with precision and can be addressed and responded to directly and efficiently by the broadcaster. Both this opinion and the majority opinion have canvassed the First Amendment interests at stake here, and there is no need to repeat them. Suffice it to say that issue ambiguity in the fairness doctrine context is a certainty to lessen the free flow of information favored by the First Amendment, and is therefore unacceptable.
75
Second, the study must reflect a high level of qualitative correspondence between its narrowly defined issue and the subjects dealt with by the news items evaluated in the study. In fact, one ought reasonably to be able to deduce from a knowledge of the issue itself that an evaluated subject is a constituent element. For instance, one can deduce from a knowledge of strip mining, an issue that has been the basis of a successful fairness doctrine complaint, 47 that the subject of reclamation of strip mined land is a constituent element of the strip mining issue. In contrast, an impressionistic report on the education of Chinese children cannot be said to bear any organic resemblance to Chinese foreign and military policy, let alone to American national security however defined. A deductive relationship between the issue and the indicia employed will help ensure rigor in delimiting the scope of the study.
76
Third, the study must seek to achieve a true objectivity not based on the spurious notion that any single administration is uniformly centrist in its positions. Although it is futile to attempt to define objectivity in the abstract, the requisite objectivity could perhaps be achieved, at least as to some issues, through comparisons of viewpoints based on quantitative assessments of the Status quo. For example, the issue of military spending assuming Arguendo its specificity, importance, and controversiality might be analyzed in terms of viewpoints seeking to increase, decrease, or maintain at present level the defense budget.
77
A study meeting these requirements might well succeed where the present study has failed.
IV. CONCLUSION
78
The purpose of the fairness doctrine is to ensure the presentation of differing views on controversial issues of public importance. The FCC and the courts must be receptive to new and innovative ways of measuring broadcasters' compliance with the doctrine. Yet in doing so we must be constantly vigilant so that First Amendment values are not jeopardized in any way, and it is that vigilance which today leads me to agree with the FCC in dismissing petitioner's complaint.
BAZELON, Circuit Judge, concurring:
79
This case vividly illustrates the substantial constitutional perils inherent in the fairness doctrine. 1 Unlike the personal attack and political editorial components of the fairness doctrine upheld in Red Lion, 2 applying the fairness doctrine to daily news coverage poses a serious threat to the independence of the broadcast press. 3
80
I heartily subscribe to the basic principle that underlies the fairness doctrine "the paramount right of the public in a free society to be informed and to have presented to it for acceptance and rejection the different attitudes and viewpoints (on) vital and often controversial issues . . . ." 4 I harbor grave doubts, however, that the fairness doctrine promotes this goal. Certainly, what benefits it may have generated in diversity have been undercut by the tendency of the fairness doctrine to suppress coverage of controversy altogether. 5
81
In view of the Commission's disposition of this fairness complaint, it is unnecessary to consider whether the application of the fairness doctrine to daily news coverage, absent bad faith or deliberate distortion, 6 could ever meet the FCC's statutory mandate 7 or the dictates of the First Amendment. I agree completely with Judge Tamm's careful and thorough analysis of the inadequacies of petitioners' prima facie complaint. We need go no further at this time.
82
As Judge Tamm notes, 8 the fairness doctrine has traditionally found its justification in the scarcity of broadcast frequencies. As that factual predicate is called into question, 9 courts may well be required to reassess the statutory and constitutional validity of the fairness doctrine's restraints on the independence of broadcast journalism. Such a reexamination, however, must await another day. 10
83
WILKEY, Circuit Judge, with whom join MacKINNON and ROBB, Circuit Judges, dissenting:
84
We would reverse the Commission's order as an abuse of discretion.
85
The fairness doctrine requires that broadcasters afford a reasonable opportunity for the presentation of contrasting views on controversial issues of public importance. 1 Although the fairness doctrine has been upheld by the Supreme Court 2 and been given statutory recognition by Congress, 3 "important constitutional questions continue to haunt this area of the law." 4 We would have thought that none of these questions is presented here, for in this case we confront not the merits of ASCEF's fairness complaint, but rather the threshold question of whether ASCEF made out a Prima facie violation. The majority, however, apparently in view of these constitutional questions, has seen fit to convert the Prima facie evidence standard into an open-ended "prudential" doctrine allowing the Commission to decline jurisdiction over hard cases. Because, unlike the majority, we find the Commission's stated reason for avoiding the merits in this case wholly unsatisfying, we dissent.
I. BACKGROUND
86
A. Facts.
87
ASCEF in a nonprofit educational institution dedicated to enhancing public awareness of facts and issues concerning this country's "national security." In recent years, ASCEF's members have perceived what they regard as a bias toward "dovish" positions in the major television networks' coverage of national security questions. In order to verify this perception, ASCEF determined in December 1972 to undertake an exhaustive and scientific study of network news programs. Although ASCEF initially set out to examine all three major television networks, cost and time constraints dictated that it confine its attention to one. CBS was chosen because it had the largest news audience and the greatest number of affiliated stations.
88
ASCEF endeavored to structure the study so as to ensure as far as possible its independence and objectivity. It assembled a team of eleven research analysts, primarily independent consultants drawn from outside ASCEF who possessed advanced academic degrees. Ernest W. Lefever, a Senior Fellow at the Brookings Institution, was chosen to coordinate the research and write a report on its findings. An Independent Review Panel, consisting of eight scholars with established academic and diplomatic credentials, was organized to scrutinize the work in progress, including research procedures and tentative findings, and to prepare written comments on the final draft manuscript before publication.
89
The research staff based its study on videotapes of CBS news programs obtained from the news archives at Vanderbilt University. Transcripts were made of all CBS Evening News telecasts broadcast during 1972. 5 From the transcripts the researchers culled all news items falling within four topic areas thought likely to produce references to national security: U.S. military and foreign affairs (including the U.S.-U.S.S.R. military balance); Soviet military and foreign policy; Chinese military and foreign policy; and Vietnam affairs. This examination produced 1,396 news items. Items that consisted of reports of events (E. g., Vietnam battlefield and casualty reports) were eliminated from consideration, since efforts to identify hidden viewpoints within these items produced disparate conclusions. To minimize subjectivity further, the researchers decided to ignore the audio-visual background of the news items, as well as the vocal inflections and facial expressions of commentators and other persons. This winnowing process left 274 explicit opinions expressed by "newsmakers" or voiced by CBS correspondents.
90
These 274 news items were subjected to a "viewpoint analysis" which formed the core of ASCEF's fairness doctrine complaint. Under this analysis, which resembled a three-option approach used by the Brookings Institution in analyzing the U.S. budget, 6 each news item was coded "A", "B", or "C", according to the viewpoint expressed on U.S. national security: 7
91
Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to Increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be Decreased.
92
To facilitate understanding of this coding system, ASCEF provided a chart, 8 giving examples of typical A, B, and C viewpoints on eight major national security subjects.
93
The 274 coded news items were broken down into sentences, and these sentences were tabulated to reveal the relative frequency of the three viewpoints. In sum, the study indicated that the CBS Evening News in 1972 presented viewpoint C (doing less about national security) 61.83% Of the time, viewpoint B (the current government position) 34.63% Of the time, and viewpoint A (doing more about national security) 3.54% Of the time. The researchers recognized that the overwhelming preponderance of C views owed largely to references about the Vietnam War. Even when references to Vietnam were excluded, however, C views outnumbered A views by a ratio of three to one. 9
94
The results of the study were examined by the Independent Review Panel in April and August 1974, and published in a 209-page report released on 23 October of that year. The report, entitled TV and National Defense: An Analysis of CBS News, 1972-73, contains an elaborate description of methodology and detailed statistical findings. Not surprisingly, it stirred considerable response from the press. 10
95
Shortly before releasing the report, ASCEF sent a copy to CBS, set forth its charges of distortion and imbalance, and requested that the network take corrective action. After some additional correspondence, CBS notified ASCEF on 23 April 1975 that it found no violation of the fairness doctrine and that no response to ASCEF's complaint was called for.
96
ASCEF thereupon determined to update its 1972-73 data "(i)n order to determine whether CBS-TV News ha(d) continued its policy of failing to provide a reasonable opportunity for the expression" of contrasting viewpoints on national security. 11 ASCEF purchased microfiche copies of CBS-TV Evening News scripts for 1975 and of all CBS-TV News programs (except "Face the Nation") beginning with January 1976. In addition, ASCEF monitored and recorded all CBS-TV News Programs for the latter two weeks of May 1975 (a randomly selected period) and for the entire month of May 1976 (the month immediately preceding ASCEF's preparation of its complaint). In reviewing these programs ASCEF "found no significant change in the pattern of viewpoint coverage reported in the basic Study." 12
97
B. Course of the Litigation.
98
On 8 September 1976 ASCEF filed a twenty-one-page complaint with the FCC charging that CBS-TV News had violated the fairness doctrine by its "persistent pattern of lopsided treatment of national security issues." 13 The complaint elaborated a description of the A-B-C coding system and a summary of the report's findings; a copy of the 209-page report itself was furnished as an exhibit. ASCEF asked that the Commission designate the complaint for a hearing on the merits. In its order released 15 March 1977 the FCC found that "no Commission action (was) warranted" inasmuch as the complaint failed to establish a Prima facie case of noncompliance with the fairness doctrine. 14
II. ANALYSIS
99
The fairness doctrine is itself not directly in question in this case. The issue before us is rather more modest. As stated by the majority, the question is simply whether ASCEF's complaint presented Prima facie evidence of a violation of the fairness doctrine sufficient to warrant an FCC inquiry to CBS. The Commission, with whom the majority agrees, thought that it did not.
100
We cannot help but sense that something more serious than a mine run question of Prima facie evidence has been decided today. The tone and rationale of the majority opinion suggest that the wagons are being drawn about the fairness doctrine in a fashion assured to deflect the most worrisome fairness complaints those, like petitioner's, alleging pervasive and continuous imbalance in the coverage of controversial matters. To be sure, the measurement and remedy of chronic "unfairness" raises novel and acutely difficult constitutional questions. And we mean to intimate no view of the precise shape of this frontier. We do, however, find it most regrettable that the majority does not confront these questions, instead carving an ill-defined safe harbor into which the Commission may sail when the waters are rough.
101
Moreover, as is evident from the majority's rationale, the Prima facie evidence test is a rather improbable safe harbor. Not only does the majority's position run headlong into the settled application of the Prima facie standard, but also it infuses the standard with an element of discretion, and hence vagueness, painfully at odds with the precision customarily required of regulation affecting speech. Contrary to the majority's assertion, there is simply no warrant in law for the sort of free-wheeling "balancing" of interests under cover of the Prima facie evidence test which the court today approves, and thus from which we must dissent.
102
As previously understood, the Prima facie evidence test served a limited screening function. The requirement of a Prima facie showing places the initial burden on the complaining party. 15 This threshold allocation of burdens is rationalized by first amendment concerns: by preventing broadcasters from being saddled with the task of "answering idle or capricious complaints," the Commission endeavors as far as possible to eschew interference with their programming discretion. 16 The requisites of a Prima facie case were enumerated in Allen C. Phelps, 17 where the Commission stated:
103
(I)t has long been our policy normally to require that fairness doctrine complaints (A ) specify the particular broadcasts in which the controversial issue was presented, (B ) state the position advocated in such broadcasts, and (C ) set forth reasonable grounds for concluding that the licensee in his overall programming has not attempted to present opposing views on the issue. 18
104
In Democratic National Committee v. FCC, 19 we reaffirmed our view that the Phelps requirements represented "a 'not unreasonable' standard," and ASCEF specifically disclaims any challenge to those requirements here. 20 Assuming, as does the majority, the validity of the Phelps criteria, then, the only question is whether the FCC reasonably complied with its own procedural standards in dismissing ASCEF's complaint.
105
It is possible to distinguish in the FCC's opinion four intertwined reasons in support of its conclusion that ASCEF's complaint failed to establish a Prima facie case. The Commission argued (1) that ASCEF did not define the "controversial issue" with sufficient specificity; (2) that ASCEF's evidence did not support its assertion that the programs surveyed were imbalanced; and that ASCEF failed to provide evidence of imbalance in CBS' Overall programming, either (3) because it did not survey a broad enough spectrum of the network's news and public affairs programs, or (4) because it did not continue its study for a long enough period of time. We consider these arguments in turn.
106
A. Definition of the Issue.
107
The FCC on several occasions has stressed that a fairness complaint bears the burden of "specifying the particular issue of a controversial nature discussed over the air." 21 In this case, the FCC found that no "well defined issue" had been presented: 22
108
Although the "national security issue" is defined by the complainant as involving "the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R.," in other parts of the complaint ASCEF refers to the subject of the study as "national defense and foreign policy issues," "Soviet and Chinese political and military objectives," and "domestic foreign policy." Moreover, the data collected in the accompanying study indicates that the complainant's perceived scope of the issue is much broader, encompassing subjects such as Chinese military and non-military policies, Southeast Asia and foreign relations generally.
109
By failing to define "national security issues" more precisely, ASCEF allegedly "made it impossible for the Commission to determine the actual issue, if any, which the complaint addressed." 23
110
A requirement that one specify the issue as the logical starting-point of an analytical undertaking can hardly be gainsaid. It must, however, be approached with a fair amount of common sense. From this vantage point, the FCC's inability to grasp the issue presented here can only be described as a willful obtuseness. ASCEF's complaint and accompanying report, particularly in their elaboration of the A-B-C viewpoint analysis, 24 made the relevant issue as plain as day: whether this nation should Do more, less, or the same about perceived threats to its national security. Topics like "Soviet military affairs" and "Chinese political objectives" were never posed as "the issue" at all, but were merely subject-areas in which references to "the issue" the appropriate response to national security threats typically could be expected to arise. ASCEF put in evidence copies of some thirty newspaper and magazine articles discussing its report; the authors of these articles, regardless of their views on the merits, discerned with perfect comprehension what "the issue" was. 25 Indeed, the FCC in its opinion, Quoted ASCEF's definition of the three "national security" viewpoints, 26 and it is hard to explain the Commission's astonishment before the handwriting on the wall.
111
The issue ASCEF posed whether this nation should do more, less, or the same about threats to its national security is a Specific issue because it is singular, precisely formulated, and explicit. 27 The issue is admittedly a Large one, but no larger than other major issues (such as abortion, 28 or cigarette advertising 29 ) with which the Commission in fairness cases has dealt. The issue is likewise a Multifaceted one, but no more multifaceted than other major issues (such as "women's liberation" 30 or children's advertising 31 ) which the Commission in fairness cases has considered. An issue's size and complexity, in any event, do not impugn its specificity or singularity, and we think that ASCEF's definition of the issue was plainly sufficient to cross the threshold of a Prima facie statement here.
112
The specificity requirement, as we have noted above, has a pragmatic purpose, and it should be pragmatically employed. The FCC in the past has shown some ingenuity in extracting specificity from a variegated proffer of issues 32 and has suggested on at least one occasion that the specificity requirement is largely precatory. 33 We have discovered extremely few cases in which the FCC has cited nonspecificity as a reason for throwing out a fairness complaint. 34 The complaints in these cases, moreover, were otherwise frivolous, and in view of the well-considered and substantial quality of the complaint in this case the Commission's verdict is virtually unprecedented. 35 "Inadequate definition" must not be used as a device for arbitrarily eliminating fairness complaints which the Commission for some reason may not want to process. 36
113
For these reasons, contrary to the majority, we conclude that the FCC abused its discretion in finding that ASCEF's definition of the relevant issue fell short of the specificity required of a Prima facie case. 37
114
The essence of the majority position is its holding "that ASCEF failed to base its complaint on a particular, well-defined issue because . . . the indirect relationships among the issues aggregated by ASCEF under the umbrella of 'national security' do not provide a basis for determining whether the public received a reasonable balance of conflicting views, . . . " 38 The majority then develops its "umbrella" concept by asserting "(t)he broadcasts ASCEF studied involved issues as distinct as America's commitment to the (NATO), detente with China, . . ." 39
115
As we have pointed out above, the Issue as defined by the viewer and the viewer has both the right and the obligation to define the issue was plain as day: Whether this nation should do more, less, or the same about perceived threats to its national security. The topics listed by the majority as "issues" might very well be defined as separate issues, If the viewer desired to charge CBS with unbalanced broadcasts on any one of these single topics. But the viewer here did not choose to define the issue this way; instead, the issue was defined in the complaint as national security. With the issue so defined whether this nation should do more, less, or the same about perceived threats to its national security the topics listed by the majority simply are Subject areas in which references to "the issue" could be expected to arise in a CBS broadcast.
116
Obviously, issues and sub-issues can be framed in many ways. The viewer can be required to define An identifiable issue, and ASCEF did this in its complaint, but the viewer Cannot be required to define an issue just as the FCC or the court would prefer. The FCC has repeatedly emphasized that the viewer is privileged to state his complaint in layman's language, and that legal precision is not necessary. This has to be so, because the fairness doctrine rests upon viewer analysis and enforcement. What the FCC received here from ASCEF was indeed a very comprehensive, thorough, and scholarly analysis, with the issue of national security stated precisely and in a way which nobody but the FCC and CBS for their own reasons failed to understand. None of the thirty commentators who wrote in the public press about the ASCEF study and the complaint to the FCC on the CBS bias failed to understand the issue and the charge on that issue which ASCEF was making. 40 Now the majority of this court inexplicably joins the obfuscators.
117
If the position taken by the FCC and this court is sustained, it would be very difficult to make Any major issue in American life the subject of a fairness complaint. This is shown by the majority's assertion that the relationships of the subject areas comprising the issue of national security to one another are "tangential," 41 and that views on any one of these subject areas could not "conflict with or support" a point of view on another subject area. As indicated above, what the majority defines ignoring the right of the viewer to define the issue on which he wishes to make a complaint as obligatory issues are nothing but subject areas or sub-issues under the viewer-defined issue of national security. Each subject area or sub-issue is a component part of the overall issue of national security doing more, less, or the same about perceived threats to our national security. A stated viewpoint on one of these subject areas or sub-issues "conflicts" with or "supports" another in a different subject area category Only when all the viewpoints on the different subject areas are added up under the overall issue of national security to see what was the predominant CBS viewpoint. 42
118
The majority opinion ignores the fact that where a large amount of data is surveyed, E.g., two full years of television broadcasts on the CBS Evening News, plus additional study of limited periods of time in those and other years, the only way such a large survey can be tabulated is to analyze the defined issue in terms of its component subject areas or sub-issues. The majority's assertion that "(i)f ASCEF had focused on individual issues, it could have identified the actual views expressed instead of superimposing artificial A, B, and C viewpoints on the broadcasts studied," 43 thus fails to recognize that only the most limited subject area, limited in concept and number of broadcasts analyzed, could have been studied in the majority's recommended fashion. Where a large amount of data is surveyed, even with a limited concept defined, it is essential to classify the viewpoints expressed instead of dealing with the phraseology of each individual broadcast, as the majority seems to think could be tabulated.
119
As we have indicated earlier, the "A, B, and C viewpoints" are not "artificial." They are scientific classifications, used by the Brookings Institution in its study of the national budget (which is in itself a pretty gigantic issue), by CBS itself in its attempted refutation of a book analyzing its broadcast policy, and by other institutions such as the Foreign Policy Association in taking polls. It was precisely because this method of analysis had been so widely used and accepted as valid in defining points of view on various public issues, such as the national budget, that it was employed by ASCEF in this particular study. 44
120
Moreover, even were the majority's concept of the overbroad "unbrella" issue an appropriate criterion, there is in this case ample evidence of imbalance separately concerning several of the precise "component" issues which the majority conceded were sufficiently specific. For example, ASCEF adduced evidence separately with regard to (1) U.S. involvement in Vietnam, (2) Soviet foreign policy objectives, (3) detente with the Soviet Union, (4) the appropriate relative military postures of the U.S. and the U.S.S.R., and (5) U.S. military expenditures and SALT. To be sure, ASCEF supposed that the Commission would have no difficulty perceiving the nexus between these subjects and the core issue of national security, a supposition which we find more than excusable, if overly sanguine. However, having declined to aggregate the subjects as ASCEF proposed, the Commission was at the very least obliged to consider the subjects separately, as would have been straightforward given the thoroughness of ASCEF's complaint. We are at a loss to explain why the Commission did not do this.
121
We find even more worrisome the majority's toleration of such an obvious error in the Commission's reading of the complaint. There is nothing subtle or indirect about the pleadings upon whose adequacy we are asked to pass. It is plain that the complaint on its face alleges imbalance concerning issues sufficiently narrow for the majority. 45 Ironically, petitioner's "inartful" pleading would apparently pass muster in any federal district court. 46 Under the Federal Rules, only a "short and plain statement of the claim" is required, 47 a condition obviously satisfied by petitioner's complaint. "Throwing people out of court" on overly formal pleading grounds is especially inappropriate in the fairness area, where the FCC's enforcement by its own admission depends almost entirely on "complaints received from interested citizens." 48 Surely a complaint by laymen should not be judged by stricter standards than a court would apply to a lawyer's pleading.
122
While the majority affirmed the Commission's dismissal of the complaint by sustaining it on the question of definition of the issue, and thus did not need to consider the other three asserted bases for the Commission's dismissal, it is necessary for this dissent to do so, for in our view the other three asserted grounds were as equally devoid of merit as the first.
123
B. Evidence of Programming Imbalance.
124
In order to demonstrate a Prima facie violation of the fairness doctrine, the complainant must indicate "the basis for (his) claim that the station has presented only one side" of the issue in question. 49 ASCEF indicated the basis for its claim that CBS had presented only one side of the national security issue by means of a statistical study showing that the network broadcast C viewpoints (doing less about national security) seventeen times more frequently than it broadcast A viewpoints (doing more about national security).
125
The FCC attacked the evidentiary basis for ASCEF's claim primarily by questioning the methodology of its viewpoint coding system. Some coded viewpoints, the Commission argued, bore no logical relation to national security; others, while logically relevant to national security, were improperly coded on the A-B-C spectrum. The Commission cited one example of each sort of alleged misclassification; 50 on the basis of these two examples, it concluded that ASCEF failed to present "adequate relevant evidence of a violation of the fairness doctrine." 51
126
We believe that the FCC's conclusion was arbitrary for three reasons. First, neither of the Commission's examples Proves any flaw in ASCEF's analysis. They evidence, at most, Arguable misclassification; whether they are misclassifications in fact depends on their content and the context in which they appeared. 52 Without texts of the items broadcast, the FCC simply did not have sufficient information to make judgments on close questions raised by ASCEF's evidentiary showing.
127
Second, even if the FCC's two examples manifested clear coding errors, they would not necessarily eviscerate ASCEF's tender of proof. ASCEF's report coded almost 300 news items, broken down into several thousand sentences. A fair-minded evaluation of this evidence must frankly confront the Bulk of the complaint; it cannot rest content with the citation of two, five, or ten lapses that do not fairly represent the whole.
128
Third, and most important, the type of detailed evidentiary challenge on which the Commission based its dismissal here is simply inappropriate at the Prima facie stage of a fairness doctrine proceeding. The soundness of ASCEF's methodology and the probativeness of its particular examples are questions for the merits, to be resolved on the basis of responsive submissions by the network and the complainant. They are not questions that must unanimously be answered in favor of ASCEF before an inquiry is even made to the licensee. To require that a complainant at the outset demonstrate his case beyond cavil is to transmute the requirement of a Prima facie showing into an Ex parte evidentiary decision on the merits. 53 Such a transmutation would render the fairness doctrine, whose enforcement depends almost exclusively on viewer-initiated complaints, 54 a dead letter.
129
Such a transmutation, moreover, is flatly inconsistent with the FCC's expressed procedural standards. In its 1974 Fairness Report the Commission discussed what a complainant had to do to "indicate the basis for a claim" of programming imbalance. "(I)f several regular viewers or listeners join together in a statement that they have not heard a presentation of (the neglected) viewpoint," the Commission said, the evidentiary burden of a Prima facie case normally would be met: 55
130
The fact that regular viewers or listeners have not been exposed to an opposing viewpoint is obviously not conclusive evidence that the viewpoint has not been presented, but it does indicate that there is a reasonable basis for the viewer's conclusion that such is the case. See Alan C. Phelps, 21 FCC2d 12 (1969). Accordingly, we believe that it is a sufficient basis for a Commission inquiry to the station.
131
In this case, a host of "regular viewers" joined together not only in a "statement," but in an elaborate statistical analysis showing that they had not heard a balanced presentation of viewpoints on national security. By so doing, they "indicated the basis for their claim" of imbalanced programming and satisfied the evidentiary requirements of a Prima facie case. The Commission acted arbitrarily in concluding otherwise.
132
C. Scope of Complainant's Study.
133
The fairness doctrine requires a licensee to provide for expression of opposing views In his overall programming; it does not require him to offer a forum for such views in the same program or series of programs. In order to establish a Prima facie violation of the fairness doctrine, accordingly, a complainant must state his reasons for concluding that the licensee In his overall programming has demonstrated imbalance. 56 The Commission found that ASCEF failed to meet this burden here. In its decision, the FCC argued that ASCEF only examined "Selected programs broadcast by the network for the periods covered by the study, but (did) not make an allegation as to the Overall news and public affairs programming of the licensee during that time." 57 In its brief the Commission goes further, and faults ASCEF's failure to present evidence of imbalance "in CBS' overall news, public affairs, And non-entertainment programming." 58 Because ASCEF "did not address each programming component," the FCC concludes, its complaint was properly rejected as a "generalized and unsupported attack." 59
134
The requirement that a fairness complainant demonstrate, as part of his Prima facie showing, the Absence of contrasting viewpoints in a licensee's Overall programming is, on its face, quite burdensome. Proving a negative proposition is never easy; it is especially difficult when the subject of which the proposition is predicated goes on twenty-four hours a day, 365 days a year. Recognizing this, the FCC in its Fairness Report proffered a narrow and reasonable interpretation of its standard: 60
135
(The Phelps doctrine) does not require, as some appear to believe, that the complainant constantly monitor the station. . . . While the complainant must state the basis for this claim that the station has not presented contrasting views, that claim might be based on an assertion that the complainant is a regular listener or viewer; that is, a person who consistently or as a matter of routine listens to the news, public affairs and other non-entertainment programs carried by the station involved. This does not require that the complainant listen to or view the station 24 hours a day, seven days a week. One example of a "regular" television viewer would be a person who routinely (but not necessarily every day) watches the evening news and a significant portion of the public affairs programs of a given station.
136
On the basis of this published procedural standard, we conclude that the FCC abused its discretion here. ASCEF's complaint asserted that its researchers had examined (1) videotapes of All Evening News broadcasts in 1972; (2) transcripts of twenty-three CBS News Specials and fourteen "60 Minutes" programs broadcast in 1972; (3) indices and abstracts of all Evening News broadcasts in 1973; (4) scripts of all Evening News broadcasts in 1975; (5) recordings of all CBS-TV News programs in a randomly chosen two-week period in 1975; (6) scripts of all CBS-TV News programs (except "Face the Nation") broadcast in 1976; and (7) recordings of all CBS-TV News programs broadcast in May 1976. On the basis of these assertions, ASCEF's researchers were plainly shown to be "regular viewers" who "routinely . . . watche(d) the evening news and a significant portion of (CBS's) public affairs programs."
137
The requirement that a fairness complainant establish a Prima facie case is, as we have said above, a commonsense requirement. Given the nature of the fairness doctrine, a complainant can legitimately be expected to make a show of having searched the broadcaster's overall programming for contrasting viewpoints. A complainant can reasonably be expected to search for such viewpoints, however, only where he sensibly would expect to find them. The Evening News is CBS's flagship news program, and has the largest audience of any television news broadcast. It dwarfs in its length, viewership, and importance the CBS Morning News, Midday News, and other subsidiary programs. The network's "News Specials" and "60 Minutes" are among its most popular news and public affairs broadcasts, and ASCEF examined all installments of these programs dealing with national security, defense, or foreign policy in 1972. If CBS did in fact present significant "opposing views" on national security in that year one would expect it to have put them where ASCEF looked. To require that a complainant look much further afield at the Prima facie stage of a fairness proceeding would be unreasonable. 61
138
After the above discussion of the comprehensiveness of the study made by ASCEF, it is perhaps irrelevant to note a particular argument advanced in the majority opinion, I.e., that the burden on CBS to respond to the complaint would be particularly heavy, that "CBS (w)ould have had to review all of its news programming relevant to national security over at least a year's time." 62 The majority's argument emphasizes how much more thorough was ASCEF's study in the instant case than probably any other complaint which the FCC has received under the fairness doctrine. ASCEF studied: (1) every Cronkite CBS Evening News broadcast in 1972; (2) transcripts of twenty-three CBS specials and fourteen "60 Minutes" programs the same year; (3) indices and abstracts of every Cronkite CBS Evening News broadcast in 1973; and (4) other programs in 1973, 1975, and 1976 as listed above. How many more CBS programs relevant to national security in 1972 could there have been? The CBS Morning News and the CBS Midday News were much briefer, and were in many parts repetitious of the flagship Cronkite Evening News. In the case at bar the complainant has produced virtually all of the evidence available and there is no burden left for the network to assume. This particular feature of the instant case should have been counted as a merit for the complainant, not made a subject of criticism, as the majority opinion does.
139
A related argument made by the majority is that the burden on all newscasters would be enormous in that spot decisions would have to be made as to preserving a balance on any controversial issue of public importance. 63 Of course, the balance called for by the fairness doctrine is over a period of time, and is a rough and not mathematical balance. More importantly, this particular argument of the majority demonstrates that the previous principal argument, that the issue should have been defined as a much more limited category, is entirely spurious. If we take any of the topics which the majority claims could have been defined, 64 the network would labor under the Same purported handicap in daily news coverage. 65
140
Thus, when we look at the issues which the majority urges could have been used (E.g., NATO or detente), we see that, irrespective of the "issue" as redefined (and presumably to which the FCC would have had no valid objection), all are issues which have been covered for many years in the past and no doubt will be for years to come, and in connection with which the same burden would be thrust upon the news broadcaster. If this burden is too much for the television licensee to carry, then what the majority is saying is that the fairness doctrine itself is too much of a burden for the television licensee, and that there is No way under the fairness doctrine by which a broadcaster can be held to account on a really large and important issue, E.g., U.S.-Soviet relations. If this is the ultimate majority opinion holding, such a holding should be recognized as such and reconsidered at the very highest level.
141
For these reasons, we conclude that ASCEF submitted sufficient evidence of imbalance in CBS's overall programming on "the issue" during the period surveyed to make out a Prima facie case. The Commission's contrary conclusion, in view of its own procedural standards, was an abuse of discretion.
142
D. Timeliness of the Complaint.
143
In its opinion the FCC suggested that although ASCEF had submitted "a voluminous, in-depth analysis of the opinions expressed" in a variety of CBS News programs in 1972-73, 1975, and 1976, its study still "(fell) short of examining the overall programming of the network" because it "made no allegations as to the content of almost two years of the network's programming a period during which numerous election campaigns were underway" and during which "national security issues might well have been topics for discussion." 66 The suggestion, we think, is frivolous. The Fairness Report requires only that a complainant establish his status as a "regular viewer." It does not suggest that a complainant, to be a regular viewer, must monitor the station for five consecutive years. The FCC in the past has found complainants to be "regular viewers" on the basis of their assertion that "they monitored the station 'for many hours, over many weeks.' " 67 ASCEF easily surpassed that record here.
144
Both the FCC 68 and CBS, finally, suggest that ASCEF is to be faulted for "wait(ing) more than three years" from the time the 1972 programs were broadcast the programs that formed the core of its study before filing its complaint. 69 ASCEF finished its report in October 1974 and immediately sent the results to CBS. Six months later CBS delivered its definitive response. ASCEF at once undertook to update its study (May 1975), and updated it again just before filing its complaint (May 1976). To suggest that ASCEF can be scored for dilatoriness on this record is unsupportable. Obviously, the complainant could have sent its study to the Commission in 1974 without giving CBS a chance to reply. That, however, would have violated the Commission's published rules of fairness doctrine procedure. 70 Alternatively, the complainant could have omitted its recheck for the years 1975 and 1976. In that event, however, the complainant might well have anticipated a rejoinder that its findings were stale or insufficiently thorough. Having first complied with the Commission rule and then made its findings thorough and up-to-date, the complainant is now faced with the charge that its complaint is untimely. This is "Kafkaesque" 71 bureaucracy in the ultimate.
III. CONCLUSION
145
In effect, the obligation of the television licensee is the other side of the coin from the obligation of a court. The most essential part of due process for centuries has been recognized by Anglo-American jurists to be Audi alteram partem "hear the other side." A licensee's obligation is to permit the other side to be heard by the American public. "The essential basis for any fairness doctrine, no matter with what specificity the standards are defined, is that The American public must not be left uninformed." 72 We recognize in the courts that no justice is done if both sides are not heard; occasionally a court may reach a right result without hearing both sides, but we insist on the procedural due process of hearing both sides to validate the eventual judgment.
146
In regard to the exercise of free speech on the airways, the only protection under the first amendment which those citizens not involved in the broadcast industry have is the protection of the fairness doctrine. Since television licenses cannot be granted to all, there must be a rough balance in the points of view presented over the airways. 73 The licensee is the custodian for service to the public. Neither the licensee, nor the FCC, nor any member of the public can be the arbiter of the truth of what is broadcast. But the licensee, and then the FCC if the licensee does not perform, is the arbiter and enforcer of preserving a rough balance in the discussion of controversial issues of public importance over the facilities of each licensee.
147
As we stressed at the outset, so we emphasize in conclusion, that we express no views on the merits of ASCEF's complaint. Whatever flaws the study on which the complaint was based may ultimately be shown to have, the FCC did not demonstrate them in its opinion ruling on whether the complainant had made a Prima facie case. Indeed, by the very nature of the issue and the purported exhaustive documentation, it would have been virtually impossible to have done so. We say only that, as a procedural matter, ASCEF specified "an issue" and presented sufficient evidence of imbalance in the network's overall programming on that issue to meet the threshold requirements of a Prima facie case concerning the issue of national security. Since we anticipate the Commission could hardly find the issue of national security not to be "controversial" and "of public importance," as the majority seems to agree, it should, in accordance with its own procedures, have made inquiry of CBS. 74
148
We therefore respectfully dissent.
149
APPENDIX A
EXAMPLES OF NATIONAL SECURITY VIEWPOINTS: 1972 1
The following list of eight national security issues illustrates the
differences between the A, B, and
C viewpoints, This was used as a guide in coding the CBS Evening News items.
Issues Viewpoint A Viewpoint B Viewpoint C
1. Desirable U.S should be Parity between
Military superior to U.S.Not necessary
for U.S. to
Balance USSR and USSR match Soviet
military power
2. Actual USSR is ahead of USSR and U.S. are U.S. is ahead of
Military U.S. USSR
Balance about equal
3. SALT: ABM and Favors Soviet Preserves strategic Laudable, but not
Union at parity
Missile expense of U.S. and enhances sufficiently
Freeze international comprehensive
peace
4. U.S. Defense Should be Should retain Should be
substantially present substantially
Budget increased level decreased
5. Soviet and USSR and PRC still USSR and PRC have USSR and PRC
Chinese intentions
Objectives intend to expand mellowed and are are largely
their less peaceful
influence by any expansionist
available
means
6. U.S. Allies U.S. should give Allies should U.S. support to
greater receive allies
support to its modest U.S. support should be
allies substantially
cut
a. NATO U.S. should U.S. should U.S. should
maintain its withdraw unilaterally
force level in forces as Soviets withdraw forces
Europe withdraw
b. Vietnam U.S. should take U.S. should U.S. should
War war withdraw withdraw as
(1972) to enemy as Saigon takes fast as possible
regardless
responsibility for of effect on
fighting South Vietnam
c. South Moderately Moderately Corrupt,
Vietnam responsive, responsive, repressive,
Government enjoys fairly enjoys fairly broad dictatorial,
broad unworthy of
popular support, popular support; U.S. aid
merits declining
strong U.S. U.S. aid sufficient
assistance
7. North Vietnam Dictatorial, Dictatorial, Authoritarian,
repressive repressive fighting just
Government regime seeking to regime seeking to war to unite
conquer conquer Vietnamese
S. Vietnam; breaks S. Vietnam; may people; will keep
keep
international international international
commitments commitments commitments
8. China
(Peking)
a. Government Totalitarian, Totalitarian, Desciplined,
repressive, mellowing socially
expansionist slightly progressive
b. Legitimatized Red Reduced tensions U .S. should have
President's China and recognized
Trip
and weakened encouraged detente Peking long
Taiwan before
150
1. Reproduced from E. Lefever, TV and National Defense 79 (1974), S.J.A. at
79.APPENDIX B
151
The following persons were members of the Independent Review Panel: Ambassador Willard L. Beaulac, consultant; Robert A. Gessert, Principal Scientist, General Research Corporation/Research Analysis Corporation; Whittle Johnston, Woodrow Wilson Department of Government and Foreign Affairs, University of Virginia; Charles Burton Marshall, Paul H. Nitze, Professor of International Politics, and Research Associate at the Washington Center of Foreign Policy Research, School of Advanced International Studies; Eugene H. Methvin, Johns Hopkins University, Senior Editor, Reader's Digest, Washington Bureau; Paul Ramsey, Harrington Spear Paine Professor of Religion, Princeton University; Riordan Roett, Director of Latin American Studies and Associate Professor of Political Science, School of Advanced International Studies, Johns Hopkins University; Dr. William Schneider, Consultant, Hudson Institute.
152
The following persons were members of the Board of Directors of ASCEF at the time of the study; Karl R. Bendetsen, Retired Chairman, Champion International; Gus A. Buder, Jr., Attorney; Ambassador Elbridge Durbrow, Director, Freedom Studies Center, ASCEF; Rosemary Edmiston; Harold F. Falk, Chairman, Executive Committee, Falk Corporation; Sol Feinstone, President, S & R Foundation; John M. Fisher, President and Chief Executive Officer, ASCEF; Patrick J. Frawley, Jr., President, Frawley Enterprises; Robert W. Galvin, Chairman, Motorola, Inc.; Ellen Garwood; the Honorable Mills E. Godwin, Jr., Governor of Virginia; Lady Malcolm Douglas-Hamilton, President, Committee to Unite America, Inc.; Marjorie H. Hankins, Member, Executive Committee, Missouri Council on National Security; Francis A. Harrington; Michael J. Harvey, Jr., President, Michael J. Harvey, Jr. Foundation; George R. Hearst, Jr., Publisher, Los Angeles Herald-Examiner; Walter H. Judd, M.D.; James S. Kemper, Jr., President, Kemper Insurance Companies; Charles H. G. Kimball, Partner, Ashcraft and Ashcraft; Ollie W. Langhorst, Executive Secretary-Treasurer, Carpenters' District Council of St. Louis; Ambassador Clare Boothe Luce; Lawrence J. Meisel, Chairman of the Executive Committee, Missouri Council on National Security; Dr. Arthur G. B. Metcalf, Chairman of the Board and President, Electronics Corporation of America; Ellen Ogle; Dr. Arthur L. Peterson, Chairman, Department of Politics and Government, Ohio Wesleyan University; Henry Regnery, Chairman, Henry Regnery Company; Henry Salvatori, President, Grant Oil Tool Company; Gerald J. Schipper, M.D.; John G. Sevcik, General Manager, McCormick Place; D. French Slaughter, Jr., Partner, Button, Slaughter, Yeaman & Morton; Colonel John Slezak, Chairman, Kable Printing Company; Dan A. Sullivan, Retired Conference Chairman, ASCEF; Francis J. Vignola, President, Vignola and Associates, Ltd.; William H. Weldon, Publisher, News Tribune Company, Inc.; Dr. Benjamin C. Willis, Former Superintendent of Schools, Chicago, Illinois; John R. Woods, Vice President, E. F. Hutton and Company, Inc.; James O. Wright, Chairman of the Board and President, Badger Meter Manufacturing Company.
APPENDIX C
153
The materials that follow, excerpted from TV and National Defense: An Analysis of CBS News, 1972-1973, 1 are illustrative of the methodology, data, and conclusions of the study on which ASCEF relied in making out a prima facie violation of the fairness doctrine by CBS.
154
(Chapter 4. Viewpoint Analysis.)
155
The Fairness Doctrine of the FCC requires TV stations and networks to provide a "reasonable opportunity for the presentation of conflicting views on issues of public importance" to "promote diverse and robust discussion." Did CBS Evening News in 1972 provide "a reasonable opportunity" for its vast audience to hear "conflicting views" on national security problems? That is the question addressed in this chapter.
156
We sought to answer this question by Content analysis, which has been described by Dr. Charles Winick as "an established technique" and a "powerful tool" for the "systematic description of communication content." He adds: "Even though it relies on judgments, content analysis can be scientific, if it is objective, systematic, and quantitative." Dr. Winick in 1971 prepared a critical report commissioned by CBS News on The News Twisters by Edith Efron.
157
In our content analysis of CBS Evening News we have made every effort to be "objective, systematic, and quantitative." At the same time, we recognize, as does Dr. Winick, such analysis relies on judgment. After grappling with the transcripts for several months, we developed a method we call Viewpoint analysis, described in detail below, which may be a pioneering effort in the evaluation of communication content. We are fully aware that viewpoints are subtly transmitted by the communicator and subjectively received by the citizen-viewer, but we believe we have avoided the pitfall of subjectivity.
Four Research Phases
158
As far as we are aware, no one before had attempted a detailed examination of the viewpoints presented in a full year of network evening news. This first effort necessarily involved a certain amount of trial and error. We frequently had to correct and refine early assumptions, terms of reference, and techniques. Gradually, we replaced doubtful and subjective methods with more certain techniques that relied less on personal judgment. While perfecting our viewpoint analysis, we introduced and developed other methods of content analysis, the results of which are reported in Chapters 2 and 3. The 14 major research steps of the viewpoint analysis fell under four partially overlapping phases:
Phase 1: Initial Terms of Reference
159
1. We defined national security very broadly to include all broadcast material that fell under these nine subjects: 1) U.S. military posture, 2) U.S. national strength, 3) U.S. internal security, 4) USSR: military, 5) USSR: non-military, 6) China: military, 7) China: non-military, 8) Southeast Asia, and 9) other foreign relations.
160
2. We consulted the Television News Index and Abstracts of the Vanderbilt Television News Archive and rented video tapes of all evening news items carried by ABC, CBS, and NBC bearing on any of the nine subjects. (After we decided to limit the study to CBS, we returned the ABC and NBC video tapes.)
161
3. The Institute for American Strategy staff transcribed all the relevant CBS Evening News items for 1972. The resulting 1,396 transcripts became the original data base for the viewpoint analysis. A brief description of the audio-visual background was attached to each transcript.
162
4. A Viewpoint coding system was devised to identify the opinion or perspective of all broadcast material on national security, using the actual position of the U.S. Government as the point of reference. In brief, the three viewpoints were: Viewpoint A, the threat to U.S. national security is greater than that on which present policy is based or we ought To do more to deal with the threat; Viewpoint B, the threat is approximately the same as that on which present policies are based and government efforts are generally appropriate; Viewpoint C, the threat to U.S. national security is less than that on which present policy is based or the government ought To do less in response to the lesser threat. If the national security item presented no viewpoint, it was designated as D. The three viewpoints are elaborated in the next section of this chapter.
Phase 2: Preliminary Analysis
163
5. A questionnaire for evaluating each CBS News transcript was developed, calling for detailed responses from one of a group of academic analysts formed for this purpose. (The transcript analysts and other outside researchers are listed in the acknowledgements.) The analyst was required to code all viewpoint passages as A, B, or C, to indicate the intensity of the view presented, and to identify the "tactics" used by the newsman. He was required to prepare a narrative justification for all his judgments. He was also asked to note recurring Themes in the news items.
164
6. After the transcript was returned from the First reader, it was reviewed by a Second reader. If there was serious disagreement over the coding in a particular transcript, it was often returned to the first reader. In all cases, there was a Final reader whose task was to assure a reasonable degree of consistency in the application of the viewpoint definitions. All 1,396 news items were subjected to this process.
165
7. The last steps in Phase 2 was the counting and tabulation of all viewpoint and D material by News item (as defined by Vanderbilt), by Idea unit (coherent idea or thought), by Sentences and by Words. The tabulation was never fully completed because the reappraisal described in Phase 3 was already underway.
Phase 3: Refining Terms of Reference
166
While performing the seven steps above, we ran into persistent coding problems rooted in our broad definition of national security, the difficulty of ascribing a viewpoint to a description of events, and the varying perceptions of different analysts. As a result, the following steps were taken, some of them concurrently:
167
8. An eight-member independent review panel met at the Institute for American Strategy, April 12-14, 1974, to evaluate all aspects of the project to date. (The members of the panel are identified in Appendix D.) They commented on three draft chapters of the report. More importantly, they each independently reviewed a representative selection of previously coded transcripts, indicating their concurrence or dissent. They discussed with the staff these coding problems, the viewpoint definitions, and the problem of news items which seemed peripheral to national security. The panel confirmed some changes already underway and suggested further refinements in method, all reflected in subsequent steps.
168
9. The broad and somewhat diffuse definition of national security was replaced by a more precise one bearing more directly on U.S. defense and foreign policy. The following four topics replaced the nine noted in the first phase: 1) U.S. military and foreign affairs (including the U.S.-USSR military balance), 2) Soviet military and foreign policy, 3) China's military and foreign policy, and 4) Vietnam affairs.
169
10. The definitions of the three viewpoints were further clarified and sharpened. The D category was eliminated because it contained many irrelevant news items.
170
11. The single most perplexing coding problem was solved by a decision to code only directly presented viewpoints, rather than attempt to identify hidden or indirect viewpoints in reports of events. In the early months, we attempted to identify viewpoints in the reporting of events, such as battlefield reports from Vietnam, but we soon discovered that different analysts came to different conclusions. To eliminate these largely subjective judgments, we limited viewpoint coding strictly to explicitly expressed opinions reported on CBS Evening News or voiced directly by CBS correspondents. This decision had the effect of significantly reducing the number of news items finally coded. Virtually all of the numerous casualty and battlefield reports in Vietnam, for example, were eliminated. Out of the original 1,396 news items, only 274 survived this rigorous screening. This left an average of more than one item for each Evening News broadcast in 1972, quite adequate for our analysis.
171
12. We decided that no coding judgments were to be based on the visual or audio background or on the voice inflection or facial expression of the CBS commentator or any other person. We recognize that these are important audience impact factors, but we concluded that their interpretation was too subjective to be used. In the final analysis, only the words were evaluated.
Phase 4: Final Analysis
172
13. Using these refined terms of reference, definitions, and techniques, a team consisting of a senior independent analyst, a senior Institute staff member, and the author did the final coding of the 274 news items carrying explicit viewpoints, modifying the earlier coding when necessary.
173
14. The results of the final viewpoint coding were tabulated and are presented by sentences and by words.
174
We are confident that any other group of objective scholars, using our viewpoint definitions, would come to essentially the same conclusions. The reader is invited to check our method and judgments by referring to the coded news items for June 1972 reproduced later in this chapter.
The Three National Security Viewpoints
175
A viewpoint is a position, opinion or attitude on any public issue. The most common method of viewpoint analysis employs three categories: For, against, and Neutral. This is the device normally used by opinion analysts. It was also used by Edith Efron in The News Twisters. This method lends itself particularly well to an examination of broadcast or published material in an election campaign.
176
In the more complex area of national security issues, however, we concluded that the For-against approach was not adequate. People are not for or against national security. The vast majority of American citizens, except for a tiny fraction of pacifists, support national defense and military spending. The real questions are How much to spend for what kinds of programs. Should we spend the same amount we are now spending, significantly less, or significantly more? The question of How much for national defense is closely related to the perception of the threat.
177
This natural breakdown doing more, doing the same, or doing less reflects the options confronting the U.S. Government. After we had adopted this three-option approach we learned that it bore considerable similarity to a method used in the first annual analysis of the United States Budget by the Brookings Institution. The Brookings authors in 1970 developed the concept of alternative Low, medium, and High defense budgets for both strategic and general purpose forces. The Medium budget corresponded approximately to what the President had requested for fiscal year 1971, which was $72.3 billion. The Low budget, based on a different assessment of the external threat and of America's responsibility in the world, came out at $48 billion, while the High budget, which assumed a greater threat and greater U.S. responsibilities, came to $77 billion. The Brookings study applied the three-option device for budget analysis to all domestic and foreign policy programs and used it with adaptations in the four subsequent budget studies.
178
In general, Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to Increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be Decreased. These three perspectives can be better understood by consulting the chart on the following page which provides specific examples of the three viewpoints on eight major national security issues.
179
Millions of American citizens can be found who express viewpoints A, B, or C on any of the issues defined in the chart or other national security questions. This is also true of groups, organizations, and periodicals. While few persons or groups always take the A view or the C view, There is considerable consistency in an individual or organizational perspective.
Example of Viewpoint Coding: June, 1972
180
To show the reader how viewpoint coding was done, we are reproducing below 40 sentences on a variety of topics exactly as they were broadcast during June 1972. In that month there were 59 sentences that carried explicit opinions on national security issues, but simply to shorten the example we eliminated the 19 sentences that happen to fall on June 15. In each case the source of the passage is indicated along with the viewpoint coding we gave to it. In none of these cases did a CBS News correspondent express his own view; in this and other respects the sample is not typical.
June 1: SALT Agreement Limiting ABM Sites
181
Roger Mudd (CBS): "The already heated debate on the Moscow ABM Treaty has erupted on the Senate floor with Henry Jackson promising to lead a fight to shut down the two ABM sites in this country because he said the treaty made them useless. Jackson said the treaty negotiations were a comic opera of champagne sipping and frantic press briefings." (Viewpoint A)
June 2: SALT Agreements on ICBMs
182
Senator Scott : "Therefore, the best thing to do is to get an agreement whereby they (the Soviets) stop on the basis of what they're already building, instead of letting them double it. And there's every indication that's what they would otherwise have done." (Viewpoint B)
June 5: U.S. Defense Budget
183
Defense Secretary Laird : "I would say that the thing to do if you go the $30 billion route is to direct the Department of Defense to spend at least a billion dollars in white flags so that it can run them up all over, because it means surrender." (Viewpoint B)
184
Senator Proxmire : "Oh, now come on. The proposal that he (McGovern) has, and I don't support it, I've indicated that I think it ought to be higher than that, substantially higher. I don't know how you can call that a white flag proposal when it does provide that we would have, continue to have, superiority in many areas." (Viewpoint C)
185
Secretary Laird : "The point I would like to make, and why I call reductions such as those white flag reductions and they are white flag reductions because they are unilateral in nature." (Viewpoint B)
186
Senator Proxmire : "Now Mr. Secretary, you kept talking about the white flag reduction. If white flag means anything to me, it means surrender. It means . . . (interrupted by Laird) Now just a minute, Mr. Secretary, you've been . . . I haven't interrupted you. I let you talk. Let me just talk for a minute or so and point out, number one, that it is not a white flag or a surrender action on the part of Senator McGovern when he proposes . . . ." (Viewpoint C)
187
Secretary Laird : "I say that any reduction on a unilateral basis before we go into negotiations on these very delicate subjects, that a unilateral disarmament action is a surrender action." (Viewpoint B)
188
Bob Schieffer (CBS): "To underscore his opposition to new defense cuts, Laird told a House Committee later in the day that he'll be forced to ask for a three to five billion dollar boost in the new budget if the North Vietnamese offensive continues through the end of the year. That would mean obligating more than $88 billion for defense next year." (Viewpoint B)
Distribution of Evening News Viewpoints
189
The bulk of the 25.6 hours on national defense and foreign policy matters broadcast by CBS Evening News in 1972 was devoted to the reporting of events, notably the war in Vietnam. Only a small portion was given to reporting opinion about events and a still smaller portion was given to direct CBS views. In the final viewpoint analysis, 274 different news items were examined and coded. This included 725 separately coded passages within news items. (A passage is an unbroken statement of one or more sentences containing One viewpoint from One source.) The number of passages per month in 1972 follow:
190
January ... 58 July ........ 65
February .. 62 August ...... 73
March ..... 15 September ... 48
April ..... 74 October ..... 72
May ....... 71 November .... 19
June ...... 61 December ... 107
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In these 725 coded passages there were a total of 2,235 sentences and 44,789 words. Both sentences and words were translated into percentages for each of the three viewpoints and four subjects. The difference between the word count and the sentence count turned out to be approximately 0.5 percent. This is not significant, so all subsequent data, except for Table 4-1, below, are based on the sentence count. The table summarizes the viewpoint distribution for all four national security subjects for 1972:
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Table 4-1
Viewpoint Distribution: Summary
Sentences Words
---------------------------------------------
Number Percent Number Percent
Viewpoint A 79 3.54 1,672 3.73
Viewpoint B 774 34.63 15,690 35.03
Viewpoint C 1,382 61.83 27,427 61.24
---------------------------------------------
Totals 2,235 100.00 44,789 100.00
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The above table shows that CBS Evening News gave preponderant (over 61 percent) attention to Viewpoint C and scant (under 4 percent) to Viewpoint A. Most of this disparity between C and A is attributable to the high proportion of Vietnam sentences (1,719 out of 2,235) and the high proportion (69.87 percent) of C material in these Vietnam sentences. The A, B, C distribution is indicated in the following table, first of all four subjects (United States, Soviet Union, China, and Vietnam), and then for the three subjects, less Vietnam.
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NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
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Taking all four subjects together, CBS News gave seventeen times as much attention to views advocating that the U.S. Government do substantially less in defense and national security than to views advocating that the government do more.
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When the Vietnam material is excluded, Viewpoint C sentences outnumber A sentences by more than three to one. We will return to this point at the conclusion of this chapter.
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It may be argued that since Vietnam comprised three-quarters of the viewpoint sentences which were strongly biased in the C direction, Viewpoint material should be treated separately and that Vietnam statistics should not be combined with those of the three other topics. Our response is twofold. First, Vietnam is treated separately. Chapter 5 is devoted entirely to it.
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Second, we believe the Vietnam viewpoint statistics should be included with the data on the other three topics, but that the number of sentences and percentage for each topic should be clearly indicated. There are three reasons for including Vietnam in the general analysis of this chapter:
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1. CBS-TV Evening News in 1972 considered Vietnam by far the most important security issue, devoting more than twice as much time to it as to all other military and foreign policy subjects combined.
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2. Vietnam continues as an issue of national concern. In 1973 after the truce had been signed, CBS Evening News gave almost as much time to Vietnam as to all other national security issues combined. And throughout 1974, Vietnam has continued as a major issue of interest to the American people, their government, and the communications media.
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3. Perhaps most important, Vietnam was, and to a substantial extent still is, a controversial issue, one on which there are diverse and deeply held positions. It is precisely this kind of controversial question to which the Fairness Doctrine is addressed. It is precisely the kind of issue by which the performance of CBS News or any other network should be evaluated.
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Did CBS Advocate Viewpoint C?
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The evidence presented in this chapter thus far suggests that CBS Evening News in 1972 gave reasonably fair coverage to Viewpoint B in three of four national security subjects, Vietnam being the exception. The bias became evident in the uneven coverage accorded the two opposing views, except in dealing with Soviet policy toward the Middle East. The viewpoint bias was pronounced in each of the other three subjects where C significantly outstripped A by these ratios: United States, 3.7 to 1; China, 6.25 to 1; and Vietnam, 48 to 1.
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Does this mean that CBS Evening News was advocating Viewpoint C? Before answering this question, several things need to be said. It might be argued that in spite of the disproportionate emphasis on C material and the neglect of A material, the result was a reasonably accurate reflection of the available opinions of national spokesmen in 1972. This argument has little merit. There were, admittedly, a larger number of articulate members of Congress who called for reductions in defense spending than there were calling for an increase in military expenditures. But it is also true that there were and are many prominent Representatives and Senators who were quietly advocating stronger national defense measures. These quieter voices were often overlooked by the communications media, especially those media not hospitable to the views expressed. Furthermore, even if it could be demonstrated that there were more C views on Capitol Hill than A views, this would be no excuse for giving 16 times as much time to the advocates of C views.
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It may also be argued that CBS News met the Fairness Doctrine requirement of balance because it gave a reasonable opportunity to the viewpoints espoused by the two principal candidates in the Presidential election. It is true that the B views of President Nixon, with the exception of those on Vietnam, and the C views of Senator McGovern on all topics were reasonably covered. But there were other views of significance that were largely ignored by CBS. All significant views on national defense should be debated, especially in an election year when a wide range of policy options should compete for consideration and support. It is only in such a wide-ranging debate that the electorate has some chance of assessing the positions of candidates or of influencing national policy.
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A clue to the disproportionate emphasis of CBS News on Viewpoint C may be found by examining the two chief sources of Viewpoint A and C material the public and CBS newsmen themselves as noted in the following table:NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
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Table 4-5 presents the three sources of all viewpoint sentences the Administration (the primary source of B views), CBS newsmen, and all other sources. By CBS views we refer to direct opinion on current issues expressed by any CBS newsman, not just the editorial commentary of Eric Sevareid. Most, if not all, CBS newsmen at one time or another have expressed their own opinions directly on the air. Of the 2,235 viewpoint sentences coded, 416 originated from CBS newsmen. As noted in Table 4-5, the great preponderance of the 416 CBS viewpoint sentences were coded C, as follows:
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NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
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This chart demonstrated that when CBS newsmen chose to express an explicit opinion they chose C views 25 times more frequently than A views. One can infer from this that the reporters on CBS Evening News, if not CBS News as a corporate entity, preferred the C perspective and that they were, in fact, advocating this view directly to their vast audience.
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To the argument that the CBS newsmen may not have been aware that they were giving their own opinions, let them read what they have said. To the argument that they may have been giving their views, but this does not amount to advocacy, we must point out that when CBS Evening News selected views from the larger public for broadcast, the same disproportion between A and C is evident, though it is slightly less pronounced. In direct CBS advocacy the ratio was 25 to 1 in favor of C over A, and in indirect advocacy by presenting viewpoints from other sources the ratio was 15 to 1. In sum, CBS News reinforced its direct and one-sided expression of national security views by selecting a spectrum of opinion from the public which was only slightly less one-sided.
The Neglect of Viewpoint A
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It is wholly permissible under the Fairness Doctrine for CBS Evening News to advocate Viewpoint C or any other position, providing that it gives a "reasonable opportunity" for the expression of conflicting views. This CBS Evening News did not do in 1972.
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It did not provide a "reasonable opportunity" for Viewpoint A, though there were many available expressions of this perspective from politicians, military experts, scholars, editors, business executives, and leaders of civic, religious, and professional organizations, as noted earlier in this chapter. Perhaps these views were not as readily available as contrary views, in part because the Presidential campaign tended to limit the parameters of debate to viewpoints B and C. But CBS News reinforced this narrowing of the issues by focusing almost exclusively on the Administration position and the McGovern attack, to the virtual exclusion of alternative views.
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CBS Evening News failed to exercise its "affirmative duty" under the Fairness Doctrine actively to seek out and present A views. The NAB Television Code says the broadcaster shall "seek out and develop with accountable individuals, groups and organizations, programs" that will "give fair representation to opposing sides." This failure to locate and report less accessable, but equally valid news, is fully documented in the Proper name analysis in Chapter 5.
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CBS Evening News failed to give adequate coverage to A views either in a quantitative or qualitative sense. In all four national security subjects combined, the ratio of C to A views is 17 to 1, and when Vietnam is excluded, the ratio is 3 to 1. The quantitative case is clear.
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But the qualitative case may be more significant. When the sprinkling of A views are examined, two facts

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/370474. Public record. Not legal advice.