“It was never intended by either Congress, or the Commission, that the [fairness] doctrine work toward suppression of the discussion of controversial issues.”
How later courts described this case
- “It was never intended by either Congress, or the Commission, that the [fairness] doctrine work toward suppression of the discussion of controversial issues.”
- fairness doctrine and personal attack rule
- “The first amendment was never intended to protect the few while providing them with a sacrosanct sword and shield with which they could injure the many.”
- refusal to renew license at least in part for misrepresentation of programming plans
Written by the judges who cited it.
The opinion
J. SKELLY WRIGHT, Circuit Judge,
concurring:
Judge Tamm’s opinion contains a careful articulation of the facts of this case and an excellent exposition of the applicable law. While I am not necessarily in agreement with all his apprais *63 als of the actions of the people concerned with this litigation, including counsel and the hearing examiner, I concur in his decision affirming the Commission on the ground that substantial evidence supports the Commission’s finding that appellant misrepresented its program plans and thus consciously deceived the Commission. This finding was a separate ground for denial of renewal by the Commission.
If this case did not involve an unpopular fundamentalist preacher, for me it would be an easy one indeed. The application to transfer the WXUR license was granted on specific representations of appellant as to programming and with a special warning that appellant must comply with its responsibilities under the law as a public licensee. The Commission felt that a special warning was required because opponents of the transfer, representing a substantial segment of the public served by the license, strongly argued that appellant, if granted the license, would not comply with the law. In spite of the warning and the circumstances surrounding the transfer generally, appellant proceeded to treat its public license as though it were its private property unencumbered by public obligations. It not only deceived the Commission as to its programming, but it ignored the Commission’s warning with respect to fairness in the operation of the station. In effect it simply defied the Commission. Under the circumstances the Commission’s action unquestionably has substantial support in the record. Universal Camera Corp v. N.L.R.B., 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951).
But because the Commission’s ruling has the possible effect of suppressing the ventilation of views with which there might be substantial disagreement, its action in denying renewal of the license requires particularly careful scrutiny. As Judge Tamm’s opinion makes clear, in such a case it is not enough simply to find that substantial evidence in the record taken as a whole supports the Commission and there was no abuse of discretion. In these circumstances the court itself should make its own evaluation of the evidence to insure that First Amendment freedoms of the licensee and the public are fully and fairly taken into account in the decision making process. See Jacobellis v. Ohio, 378 U.S. 184, 187-190 , 84 S.Ct. 1676 , 12 L. Ed.2d 793 (1964); New York Times Co. v. Sullivan, 376 U.S. 254, 285 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964); Niemotko v. Maryland, 340 U.S. 268, 271 , 71 S.Ct. 325, 328 , 95 L.Ed. 267 , 280 (1951); Bridges v. California, 314 U.S. 252, 271 , 62 S.Ct. 190 , 86 L.Ed. 192 (1941). So doing, I cannot say that the Commission erred in denying the renewal application in this ease.
Chief Judge BAZELON concurs in affirming the decision of the FCC solely on the ground that the licensee deliberately withheld information about its programming plans. A full statement of his views will issue at a later date.
PER CURIAM:
On September 25, 1972, the judgment of this court was filed affirming the action of the Commission in this case on the ground of deception in the acquisition of a broadcasting license. Chief Judge Bazelon also concurred “in affirming the decision of the FCC solely on the ground that the licensee deliberately withheld information about its programming plans.” He stated further that “[a] full statement of his views will issue at a later date.”
Chief Judge Bazelon now files a dissenting opinion. That opinion follows immediately on p. 63. Circuit Judge J. SKELLY WRIGHT files a response, with the concurrence of Circuit Judge TAMM, which follows on p. 80.