# Brandywine-Main Line Radio, Inc. v. Federal Communications Commission, Greater Philadelphia Council of Churches, Intervenors

> Court of Appeals for the D.C. Circuit · December 4, 1972 · 473 F.2d 16

URL: https://www.frixlaw.com/law-library/cases/9459137

## Case

- **Full name:** BRANDYWINE-MAIN LINE RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Greater Philadelphia Council of Churches Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** December 4, 1972
- **Citations:** 473 F.2d 16
- **Precedential status:** Published
- **Opinion:** Concurrence by Wright
- **Judges:** Bazelon, Wright, Tamm
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9459137

## Opinion text

J. SKELLY WRIGHT, Circuit Judge,
with whom Circuit Judge TAMM concurs, responding:
Since Judge Bazelon’s dissent seems to be an attack on the fairness doctrine, in fairness to the reader he should make clear at the outset of his opinion that the court’s judgment in this case is not based on the fairness doctrine.
When this court’s judgment affirming the Commission in this case came down September 25, 1972', Judge Bazelon
joined in that judgment. Now he would dissent from that judgment, apparently because he questions the Commission’s reliance on the fairness doctrine in reaching its decision. But the Commission’s decision was based on «two grounds: (1) alleged violations of the fairness doctrine by the licensee, and (2) deception and misrepresentations made to the Commission by the licensee in obtaining the license. Judge Bazelon *81 states in his dissent that he originally concurred in affirming the Commission because of appellant’s deception and misrepresentations in obtaining the license in the first place. Now he dismisses that ground as too “narrow a ledge” to rest affirmance of the Commission’s action.
As shown in my separate opinion, I rested my concurrence in the court’s judgment solely on the deception ground. Since Judge Tamm would affirm the Commission on that ground also, that ground, and that ground alone, forms the basis of our judgment. I do not agree that it is too “narrow a ledge.” Elementary contract principles teach that when a licensee obtains his license by fraud and deception, that license may be voided by the grantor like any other contract may be set at naught for the same reason. I do not believe that a contract is less voidable for deception in its inception simply because the Government is the party deceived. Indeed, since the public is the loser when the Government is deceived, courts should be more, not less, alert in enforcing primary contracting concepts, particularly those based on simple honesty.
By resting the court’s judgment in this case on the narrow contract ground, we avoid plunging into the constitutional “thicket” that - is the fairness doctrine. The fairness doctrine is a tortured constitutional area of the law that, as Judge Bazelon recognizes, is under comprehensive study in rule-making proceedings now being conducted by the Commission. Because of the pendency of this study and because courts should not reach out to decide difficult constitutional issues when a narrow nonconsti-tutional ground is available for decision, I voted to affirm the Commission’s action in this case without reaching the constitutional issues involved in an application of the fairness doctrine. I do not think that deception in obtaining a Government license is too narrow a ledge for voiding that license. The Supreme Court flatly so held in F. C. C. v. WOKO, Inc., 329 U.S. 223 , 67 S.Ct. 213 , 91 L.Ed. 204 (1946), and there are no cases holding otherwise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459137. Public record. Not legal advice.