# Appendix — Accuracy in Media, Inc. v. National Broadcasting Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1285%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 910

## Text

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-670

AccurRAcy IN Meni, INc.,
Petitioner
v.
NATIONAL BROADCASTING COMPANY, INC.,
ond Respondent
FEDERAL COMMUNICATIONS COMMISSION,
Respondent on Side of Petitioner

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

ALVIN B. Davis
1625 K Street, N.W.
Washington, D.C, 20006
347-1900

Attorney for Petitioner

Accuracy in Media, Ine.

November 5, 1975

Press or Byron S. ADAMS Paintin, Inc., Wasurncton, D. C.

TABLE 0F CONTENTS
Page

Memorandum Opinion and Order of the Federal Com-
munications Commission ........+eeeeceeeeeees la

Court of Appeals Judgment and Opinions of Septem-
ber 27, 1974 .....cccccccccccccccceveccvcvcsess 34a

Order Granting Rehearing En Bane ......+++++++++ 99a
Order Vacating Order Granting Rehearing En Banc . .100a

Judge Bazelon’s Dissent to Order Vacating Order
Granting Rehearing En Banc .......+++++ee00es 100a

Court of Appeals Order and Opinions of July 11,
DE: otdcceendedssd Pesededeeweseseseedes o8es 150a

la

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554

In Re Compiaint or Accuracy 1n Mep1a, Ino.
against
NationaL Broapcastinc Company, Inc.

44 FCC 2d 1027 (1973)

‘Memorandum Opinion and Order
Adopted: November 26, 1973; Released: December 3, 1973

By the Commission: Commissioners Burch, Chairman and
Reid concurring in the result, Commissioners Johnson
and H. Rex Lee absent.

1. The Commission has before it (1) an Application for
Review filed by National Broadcasting Company, Ine.
(NBC) on June 21, 1973, pursuant to Section 1.115(d) of
the Commission’s Rules and Regulations which seeks re-
view of the Broadcast Bureau’s ruling of May 2, 1973 on
the fairness doctrine complaint of Accuracy in Media, Inc.
(AIM) concerning the programs ‘‘Pensions: The Broken
Promise’’ broadcast by the NBC Television Network on
September 12, 1973; (2) on opposition to the Application
for Review filed by AIM on July 6, 1973; and (3) a reply
to the opposition filed by NBC on July 16, 1973."

1 The Commission has also given leave for the filing of the follow-
ing pleadings for its consideration: Comments on NBC’s reply to
its opposition filed by AIM on July 20, 1973; Comments in sup-
port of the Application for Review filed by Radio Television News
Directors Association on July 16, 1973, Columbia Broadcasting
System, Inc (CBS) on July 23, 1973, and National Association of

2a

2. The pleadings of the parties which were before the
Bureau are fully set forth in its ruling, 40 FCC 2d 958
(1973), and need not be repeated here. The Bureau ruled,
inter alia, that NBC’s judgment that the ‘‘Pensions’’ pro-
gram only addressed ‘‘some of the problems involved in
some private pension plans’’ was unreasonable; that the
program did in fact present views advocating one side of a
controversial issue of public importance concerning the
overall performance of the private pension system and the
need for governmental regulations of all private pension
plans; and that NBC had not afforded reasonable oppor-
tunity for the presentation of contrasting views, nor ex-
pressed any intention of doing so in accordance with its ob-
ligations under the fairness doctrine. The Bureau therefore
requested NBC to advise the Commission as to how it
would meet its fairness obligations.

THe APPLICATION FoR REVIEW

3. In seeking reversal of the staff’s ruling, NBC submits
that the Bureau’s decision ‘‘misconstrued the nature of the
program involved,’’ and ‘‘is utterly inconsistent with basic,
firmly rooted fairness doctrine principles... [and] with the
First Amendment itself.’’ NBC states that under estab-
lished Commission practice, ‘‘determination as to what is-
sue has been the basic subject considered in a program, and
whether the licensee has presented balanced coverage of
that issue, are matters on which the licensee’s judgment
must be upheld unless clearly unreasonable or in bad faith,’’
NBC contends that it has made a ‘‘concededly good faith’’
and ‘‘plainly reasonable’’ judgment that the ‘‘Pensions’’
program ‘‘dealt not with the ‘overall performance’ of the

Broadcasters on August 10, 1973; and a reply to the CBS com-
ments filed by AIM on July 27, 1973. The Commission has re-
viewed these additional comments and believes that the matters and
issues which they discuss have been fully raised by the pleadings
of the immediate parties indicated above, and need not be com-
mented upon individually.

ohn —

3a

private pension system, but rather with some problems of
some pension plans.’’ In its description of the program,
NBC states that ‘‘Pensions dealt with the pitfalls and
failures of some private pension plans’’ and ‘‘presented,
among other things, case histories of workers who...
lost their pension benefits by the failure of the company,
its absorption by a conglomerate, or simply by an incom-
petent management or the quirk of an incomprehensible
contract’’; and that ‘‘ While dealing exclusively with such
subjects, the program did provide a framework within
which the problem could be examined by indicating clearly
that there were many private pension plans that worked
satisfactorily ...’’ NBC concludes its characterization
of the program as follows:

The ‘‘Pensions’’ program did not deal with the ques-
tion of what percentage of pension plans fail to per-
form as expected. Nor did it say, expressly or by
implication, that most plans do not perform as ex-
pected. It did not discuss what legislative or other re-
medial action may, or should, be taken. It did not say
that the private pension system should be changed or
eliminated. It was investigative journalism, focusing
on and exposing to public view a significant social
problem, and it did not offer answers to that problem.

4. NBC states that the reasonableness of its judgment
as to the subject matter of the program is supported by
submitted affidavits of its producers, Messrs. Reuven Frank
and David Schmerler. In his affidavit Mr. Frank states
that in deciding upon the subjects for the 1972-1973 ‘‘NBC
Reports”’ series of hour-long news documentaries, NBC
became interested in ‘‘the problem of those private pension
plans which, in fact, failed to provide the promised pen-
sions,’’ such interest initially resulting from ‘‘hearings of
the Senate Labor Committee into the subject and subse-
quently written reports in such publications as ‘Fortune’
magazine’’; and that it was decided that this subject should

4a

be dealt with in the first ‘‘ NBC Report”’ for the 1972-73 sea-
son. Mr. Schmerler states in his affidavit that he was asked
‘*to write and produce a documentary with respect to the
problems caused by the failure of many private pension
plans to pay the money promised by them,’’ and that ‘‘ pre-
liminary research had disclosed ... that the problem was a
continuing one...’’ NBS has also submitted a compilation
of ‘‘descriptions of the program’’ contained in various
newspaper and magazine reviews of the ‘‘Pensions’’ docu-
mentary, * and contends that ‘‘since so many independent
viewers of the program concluded—as did NBC—that its
subject was ...a ‘tough study of the failures of some priv-
ate pension systems’ NBC may not, under any standard, be
held to have been unreasonable in its decision that that was
indeed the subject of its program.’’ NBC further submits
that ‘‘the result would be the same even if there had been
greater diversity among reviewers as to what the ‘Pen-
sions’ program: was about,’’ since ‘‘reasonableness’’ means
that ‘‘even though there could be disagreement as to what
the issue is, if the licensee’s judgment is defensible, it may
not be rejected.”’

5. NBC states that ‘‘The deviation by the staff from the
permissive standards of reasonableness’’ could lead to
‘‘nothing less than administrative chaos’’; that ‘‘if NBC
were required to present a program showing what AIM re-
fers to as successful pension plans in operation ..., some
AIM-of-the-left might well file a fairness complaint saying
that the AIM program painted a too ‘rosy’ picture of pen-
sion plans, and claiming that the original ‘Pensions’ pro-
gram was too restrained in its treatment of pension plan
evils’’; and that ‘‘Other subjects that might... be deemed
raised by the program include: how each company and un-
ion referred to by name actually treat their employees;

2 This material, as well as all other pleadings in this case, is on
file in the Commission’s Washington, D. C., office and is available
for public inspection.

5a

when rights under pension plans should vest in the employ-
ees; to what extent pension rights should be transferable
from one company to another; whether federal legislation
should be enacted and, if so, what kind; whether sufficient
guidelines or laws exist with respect to the investment of
pension funds; whether workers are sufficiently informed
as to the nature of the coverage of their pension plans;
whether corporations should be required to have pension
plans; [and] who should manage funds.’’ NBC submits
that ‘‘This list . . . indicates that to have a fairness doc-
trine that is workable in practice as well as in theory, the
licensee must be given what we believe the staff decision
improperly withholds: the broadest leeway to determine
what subjects to consider and what subjects have been con-
sidered.’’

6. NBC also contends that the Bureau’s ruling ‘‘is incon-
sistent with the declared purpose of the fairness doctrine
... to insure that discussion on public issues [will be] un-
inhibited, robust, and wide-open,’’ and, if upheld, would
force broadcasters ‘‘to take a bland course rather than a
brave one.’’ NBC submits that ‘‘the concept in the staff
opinion [is] that whenever a social problem is exposed on
television, ‘balance’ must be achieved by including ‘posi-
tive’ material to minimize the nature of the problem,’’ and
that this ‘‘concept’’ is ‘‘antithetical to the essence of jour-
nalism itself.’’ In particular, it cites the following extract
frum the submitted affidavit of Mr. J. Edward Murray,
past president of the American Society of Newspaper Edi-
tors:

‘¢ . . it would be commonplace newspaper procedure
that if an editor decided that some private pensions are
flawed or useless, and published a typical expose to
this effect, the expose would simply assume that the
majority of private pension plans were more or less in
acceptable shape. Otherwise, the forces of both law and
business would have corrected so obvious a deficiency.

Dice,

6a

Nevertheless, under the fairness doctrine, as here in-
terpreted, the pension expose would be considered a
controversial issue and the editor told that he should
have given a fairer shake to private pension plans in
his original expose, and failing that, that he must now
run another non-expose presenting the fact that a ma-
jority of private pension plans function satisfactorily.

That dictum, that FCC interpretation in the AIM/NBC
case, if applied to newspapers, would either destroy
the fruits of any investigative reporting, or more than

likely, guarantee that no serious investigative reporting
would be undertaken in the future.’’

NBC states that ‘‘It is simply no answer to these problems
to require NBC to earry yet another pension program deal-
ing with happy pensioners. The concept of such a program
is precisely as unsound journalistically as it would be to re-
quire NBC to include more ‘positive’ material in the ‘ Pen-
sions’ program itself.’’

7. NBC further states that AIM has attempted to use the
staff decision ‘‘to threaten NBC affiliates which carried the
‘Pensions’ program,”’ citing the following excerpts from a
letter sent by AIM to NBC’s affiliated stations on May 23,
1973:

‘*‘The licensee is responsible for what he broadeasts.
If you carried ‘Pensions: The Broken Promise’ and
you have not given your audience a program that
showed the other side of the issues, you have not ful-
filled your obligation under the fairness doctrine. (We
are) sure that you are anxious to fulfill that obligation.
NBC may wish to challenge the F.C.C. on the fairness
doctrine issue, but it is the licensee, not the network,
that may have this used against him in any challenge to
a license renewal. NBC has an obligation not to play
games with your license. We urge you to tell NBC that.

7a

AIM intends to enter notice of this fairness doctrine
violation in the file of each station that carried ‘Pen-
sions: The Broken Promise.’ Please let us know if you
did carry this program and if you have broadcast other
programs that provided the requisite balance. If we
do not hear from you, we shall assume that you carried
the pensions program and have not provided any other
program to balance it.’’

NBC submits that such letter ‘‘is, in and of itself, a demon-
stration of the dangers inherent in the staff opinion.”’

8. NBC further contends that the staff’s ‘‘application of
the fairness doctrine’ is ‘‘inconsistent with the First
Amendment’’ and ‘‘unconstitutional.’’ While NBC ac-
knowledges that the constitutionality of the fairness doc-
trine has been upheld in Red Lion Broadcasting Co. v. FCC,
395 U.S. 367 (1969), and ‘‘understands’’ that the ‘‘valid-
ity’’ of Red Lion was ‘‘reaffirmed by the decision of the
Supreme Court in Columbia Broadcasting System v. Demo-
cratic National Committee, — U.S. — (41 U.S.L.W. 4688,
36 L.Ed.2d 772, May 29, 1973), it submits that ‘‘to say the
fairness doctrine is constitutional is not... to say that each
purported application of it is constitutional.’’ NBC states
that this case deals with ‘‘a licensee’s judgment in the
presentation of news and news documentaries,’’ and that
‘*In no other area is the need for the broadcast deference to
licensee judgment greater, for in no such area are First
Amendment interests [of the broadcaster] greater.’’ NBC
submits that the Commission and the courts have left broad-
casters ‘‘broad leeway for professional judgment’’ in this
area of ne .3 and documentary presentations; that this dis-
cretion ‘‘arises from a recognition that to intrude the Com-
mission too deeply into the processes of broadcast journal-
ism would necessarily inhibit the freedom of that journal-
ism’’; and that ‘‘both the Commission and the courts must
give an extremely ‘hard look’ to any claim that the applica-
tion of the fairness doctrine—or the imposition of sanctions

8a

for alleged failures to comply with it—violates the First
Amendment.”’

9. NBC states that ‘‘These factors are all the more com-
pelling when licensees are engaged in investigative journal-
ism,”’ since ‘If there is a hierarchy within the speech pro-
tected by the First Amendment, investigative journalism is
surely at its apex.’’ In support of this contention, it cites
the importance of 19th century press exposes of the ‘‘ Tweed
Ring’”’ in New York City, the ‘‘ Credit Mobilier scandal’? in-
volving U.S. Senators and Representatives accused of ac-
cepting stock in the company organized to build the Union
Pacific Railroad, the ‘‘seandals during the Grant adminis-
tration,’’ including the ‘‘ Whiskey Ring’’ and ‘‘Navy De-
partment scandal,’’ and more recent press exposes of ‘‘ Tea-
pot Dome’’ and ‘‘Watergate.’’ It states that ‘‘the subject
being investigated by such efforts is so often the government
itself,’’ and that ‘‘To the extent the staff’s opinion requires
even greater accountability to the government itself, it is
simply inconsistent with the ‘long history of disassociation’
and even antagonism that has characterized the relationship
between government and press in our country... [and] as
such ...is violative of the First Amendment.’’ In partic-
ular, NBC cites the following passage from the opinion of
the Court in the recent Columbia Broadcasting System case,
supra, as supporting its First Amendment contentions:

For better or worse, editing is what editors are for;
and editing is selection and choice of material. That
editors—newspaper or broadeast—can and do abuse
this power is beyond doubt, but that is not reason to
deny the diseretion Congress provided. Calculated
risks of abuse are taken in order to preserve higher
values. The presence of these risks is nothing new;
the authors of the Bill of Rights accepted the reality
that these risks were evils for which there was no
acceptable remedy other than a spirit of moderation
and a sense of responsibility—and civility—on the

- see

9a

part of those who exercise the guaranteed freedoms
of expression. 41 U. 8S. L. W. at 4697, 36 L.Ed.2d

at 796.

NBC submits that ‘‘The courts have condemned over the
years, not merely governmental action overtly suppressing
the expression by the press of particular views, but the
subtlest of governmental influences which might mute the
press in the slightest degree or discourage it, even mini-
mally, from performing its role’’; that ‘‘the effect of the
staff decision . . . would inhibit television journalism by
forcing television reporters to engage in a kind of thinking
and practice which has nothing to do with journalism”’;
and that ‘‘it would impose .. . a variety of less obvious
sanctions—e.g., the inhibiting effect upon television jour-
nalists and producers of being obliged to justify to their
superiors and to the Commission the work they have done;
the immense amount of time required—time better spent
preparing new programming—in preparing a ‘defense’ to
similar charges; the ever present threat to license renewals
inherent in such rulings; and the like.”” NBC concludes
that ‘‘the essence of the staff ruling is [that] unless NBC
is prepared to promise further programming setting forth
at still greater length than in ‘Pensions’ the view that the
pension system as a whole is a success, NBC may not
broadcast its program examining some problems in private
pension plans,’’ and that therefore the ruling is ‘‘ineon-
sistent with the most basic precepts of journalism, .. . the
fairness doctrine, ... and the First Amendment itself.’’

Tue Oppostrion

10. In opposition to the Application for Review, AIM
submits that the staff was ‘‘correct in concluding that
‘Pensions: The Broken Promise’ presented views which
were broadly critical of the performance of the entire
private pension system and explicitly advocated and sup-
ported proposals to regulate the operation of all pension

10a

plans’’; that the subjects of ‘‘ portability, vesting, funding,
and fiduciary relationship’’ discussed in the program were
the very subjects of regulatory proposals pending in the
Congress; and that the concluding remarks of the pro-
gram’s narrator, Mr. Edwin Newman, specifically stated
that this was the case. AIM states that NBC’s ‘‘defense’’
that the program only addressed some of the problems in
some pension plans is ‘‘untenable’’ in light of the many
statements presented in the program which emphasized
overall pension plan performance and specific proposals
for the regulation of all private pension plans. AIM also
states that it rejects ‘‘the theory that if the broadcaster
ean find one independent observer who will confirm his
description of the program content, the F. C. C. must agree
that his definition is reasonable’’; that the Commission
‘‘must base its findings on its own analysis of the pro-
gram, taking into account what NBC and the complainant
say about it’’; and that ‘‘The introduction of excerpts from
journalistic comments on the program does nothing to
assist the Commission in carrying out this responsibility.’’
AIM further submits that the Commission should not ‘‘ give
NBC or any other licensee the sole authority to make the
determination as to what subjects have been considered on
a program that has been broadeast’’ because such author-
ity would allow broadcasters ‘‘to define away controversial
issues of public importance that they have aired in a one-
sided way’’ and thereby avoid their fairness doctrine obli-
gations.

11. AIM also disputes NBC’s contention that the effect of
the staff ruling is contrary to the fairness doctrine policy
of ensuring ‘‘uninhibited, robust and wide open’? discussion
of public issues. Citing several Commission statements of
fairness doctrine policy, AIM states that ‘‘NBC has a dis-
torted view of the origins of the fairness doctrine if the
implication [of its contention] is that the licensee is entitled
to use the airwaves to carry an uninhibited presentation of
views that he favors to the exclusion of views of others in

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the community’’; and that ‘‘contrary to NBC’s claim...,
the legislative history and the court cases show that the
purpose of the fairness doctrine was to inhibit broadcasters
by requiring that they present a wide range of community
views.’’ Noting that the Supreme Court in Red Lion,
supra, observed that the Commission was not powerless
to insist that broadcasters fairly cover controversial is-
sues, AIM submits that ‘‘If NBC tells the Commission that
it is unable to present a vigorous discussion of controver-
sial issues while insuring the presentation of a variety of
viewpoints, then the F. C. C. should give serious thought
to following the [Court’s] suggestion of remedial action.’’

12. AIM also takes exception with NBC’s ‘‘view that
if it had to be fair and give the facts and arguments on
both sides of the pensions controversy, it could not do a
good job of investigative reporting.’’ AIM states that this
view is that of ‘‘advocacy journalism’’; that ‘‘The prac-
titioners of this brand of journalism think that ‘good’
journalism is taking sides and rigging your story in order
to influence public opinion to support the side that you
think to be right’’; and that ‘‘most responsible journalists
reject this concept of ‘good’ journalism ... in either the
print or the electronic media.’’ In this regard, AIM sub-
mits a copy of an article on the private pension plan con-
troversy appearing in the Washington Post as showing
that it is ‘‘possible for a good journalist to talk about the
abuses without omitting to put the matter into perspective
and report on the views of those opposed to some of the
features of the bill that was then before the Senate.’’ AIM
states that by comparison the NBC presentation was ‘‘one
sided, emotional and uninformative,’’ and that ‘‘ Advocacy
journalism of the type practiced by NBC in the ‘Pensions’
program and defended by NBC ... is precisely the kind
of journalism that the fairness doctrine should protect the
publie against.’’

13. AIM further states that NBC ‘‘does not question
the constitutionality of the fairness doctrine but... asserts

12a

that the ruling on ‘Pensions’ is unconstitutional’’; and
that this ‘‘argument is extremely murky, with no effort to
describe wherein this ruling differs from many others than
have been made by the Commission in the past.’’ AIM
concludes that ‘‘We believe the Commission should uphold
the staff ruling in the ‘Pensions’ case.’’

Tue ReEpiy

14. In reply to AIM’s opposition, NBC states that con-
trary to AIM’s submission, the ‘‘Pensions’’ program dealt
‘only glancingly’’ with the subjects of portability, vesting,
funding and fiduciary relationship. NBC reiterates its
contentions that the program was ‘‘a broad overview of
some of the problems involved in some private pension
plans,’’ that the program did contain material that placed
‘*the subject matter of the program in focus,’’ and that it
‘attempted to treat the subject in an evenhanded, accurate
and reasonable manner.’’ It states that ‘‘No prior sub-
mission by NBC has contended that the ‘Pensions’ program
dealt with the ‘broad issues of private pension plan per-
formance,’ nor does NBC now contend that ‘evenhanded
treatment’ of controversial issues is impossible, nor that
the ‘Pensions’ program was i» any sense unfair.’’ NBC
also submits that ‘‘It is surely untrue for AIM to attribute
to NBC the view that ‘good journalism is taking sides and
rigging your story,’ or that ‘if it tried to be fair... it
could not do a good job of investigative reporting.’’ NBC
further states that while AIM suggests that such programs
as the ‘Pensions’ documentary should have an ‘‘almost
‘mathematically’ even balance of views,’’ such an ap-
proach to fairness has been rejected by both the Commis-
sion and the courts.

15. NBC submits that ‘‘The critical line in the staff’s
opinion is the finding that the ‘Pensions’ program ‘did in
fact present views which were broadly critical of the per-
formance of the entire private pension system... ’’; that

13a

‘¢The lesson of the staff opinion is apparently that for NBC
to have been ‘fair’ it either should have presented (a)
fewer views which were ‘broadly critical’ or (b) more
views which were not so critical’’; and that ‘‘ Never before
has an opinion of the Commission intruded so deeply into
the very processes of television journalism.’’ Citing various
governmental and private studies, reports, and regulatory
proposals, NBC states that such ‘‘intrusion”’ ‘‘is all the
more striking because with respect to the subject of private
pensions it states a truism to conclude that significant
problems do exist,’’ and that ‘‘This is not what [AIM]
refers to as ‘brainwashing’: it is simply a fact.’’ NBC
submits that ‘‘There is no documentary dealing with and
exposing any social problem to which the reasoning of the
staff opinion could not apply’’; that ‘‘The fairness doc-
trine has never before been interpreted so as to trans-
form a program dealing with a social problem into one ex-
amining, in general terms, the performance of the system
in which the problem is found’’; that ‘‘Any such reading
of the doctrine by the Commission could only limit the
quality and quantity of investigative journalism on tele-
vision’’; and that such a result would be inconsistent with
both the fairness doctrine and the First Amendment.

Discussion

16. Under the fairness doctrine, a broadcaster presenting
one side of a controversial issue of public importance is
obligated to afford reasonable opportunity for the pre-
sentation of contrasting views on that issue in his overall
programming. The Commission has repeatedly stated that
in applying the fairness doctrine the broadcaster ‘‘is called
upon to make reasonable judgments in good faith on the
facts of each situation—as to whether a controversial is-
sue of public importance is involved, as to what viewpoints
have been or should be presented, as to the format and
spokesmen to present the viewpoints, and all other facets
of such programming.’’ Applicability of the Fairness Doc-

l4a

trine in the Handling of Controversial Issues of Public
Importance, 40 FCC 598, 599 (1964). Here NBC does not
dispute the Bureau’s finding that at the time the ‘‘Pen-
sions’’ program was broadcast the overall performance and
proposed regulation of the private pension system con-
stituted a controversial issue of public importance within
the meaning of the fairness doctrine.* Rather, NBC main-
tains that the ‘‘Pensions’’ program only ‘‘dealt with some
problems of some pension plans”’ and that the performance
and proposed regulation of the private pension system
‘‘was not even the subject of the ‘Pensions’ program.”’
The basic issue thus presented by the Application for Re-
view is whether the Bureau erred in its ruling that NBC’s
judgment on these matters was unreasonable. For the
reasons which follow, we affirm the Bureau’s ruling.

17. As NBC emphasizes, the Commission’s role in pass-
ing on any complaint under the fairness doctrine is ‘‘not
to substitute its judgment for that of the licensee ..., but
rather to determine whether the licensee can be said to
have acted reasonably and in good faith.’’ Applicability of
the Fairness Doctrine in the Handling of Controversial Is-
sues of Public Importance, 40 FCC at 599. However, while
this Commission has consistently recognized and upheld
the broadeaster’s discretion to make reasonable, good faith
judgments as to his fairness doctrine responsibilities, we
have also indicated that such diseretion is not unlimited:

In stressing that the licensee has considerable discre-
tion in discharging his fairness obligation, we do not
mean to imply that that discretion is absolute... [Wle

’ The Bureau based this finding on AIM’s uncontradicted sub-
missions that proposals for the regulation of all private pension
plans were pending before the Congress and that such proposals
were opposed in whole or in part by ‘‘various groups and spokes-
men including the National Association of Manufacturers, several
labor unions, the Chamber of Commerce of the United States, and
the Nixon Administration.’’ 40 FCC 2d 958, at 967.

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will intervene if the showing establishes that the lic-
ensee has acted unreasonably. Committee for the Fair
Broadcasting of Controversial Issues, 25 FCC 2d 283,
292 (1970).

As we stated in our Public Notice of July 26, 1963, entitled
‘*Stations’ Responsibilities under the Fairness Doctrine
as to Controversial Issue Programming’’:

In determining compliance with the fairness doctrine
the Commission looks to substance rather than to label
or form... Regardless of label or form, if one view-
point of a controversial issue of public importance is
presented, the licensee is obligated to make a reason-
able effort to present the other opposing viewpoint or
viewpoints. 40 FCC 571, 572 (1963).

The specific question properly before us here is therefore
not whether NBC may reasonably say that the broad, over-
all ‘‘subject’’ of the ‘‘Pensions’’ program was ‘‘some
problems in some pension plans,’’ but rather whether the
program did in fact present viewpoints on ore side of the
issue of the overall performance and proposed regulation
of the private pension system.

18. Our review and determination of this question must
necessarily rest primarily upon the program itself.t The
program opened with the announcement, ‘‘Tonight NBC
reports on Pensions: The Broken Promise’’ and the fol-
lowing statements by unidentified men and women:

Man: I figure I had twenty-three years seniority
filled up, possibly last up until I was in my forty year

* For this reason, NBC’s submitted collection of short ‘‘deserip-
tions of the program’’ gleaned from newspaper and magazine re-
views cannot be considered substantial factors in our determi-
nation here. Such brief and general one-line summaries provide
no information as to what particular views on the subject of pen-
sions may have been presented in the one-hour documentary, and
hence are of little value in determining the applicability of the
fairness doctrine and the validity of the arguments of the parties
with respect to the actual substance of the program.

l6a

sometime at least before I retired and then to look
back and see it all fallen away. Everything that you
planned on. Just seems like a waste of time.

Woman: There must be thousands maybe millions
of them that’s getting the same song and dan-e my
husband got. When they reach their time for retire-
ment there is no funds to pay them.

Manx: This man, Hoffa, on there, retired with a one
point seven million dollar lump/sum pension. And I
can’t get three hundred dollars a month out of them
on there for my retirement.

Man: Where does all this money go that’s been paid
into these pensions.

Man: The pension system is essentially a consumer
fraud, a shell game and a hoax. As a matter of fact,
when you say it’s a consumer fraud, you pay it an
undue compliment, because typically you think of con-
sumer frauds in terms of short transactions .. . but
with the pension system you really have a long term
contract that may run fifty or a hundred years that’s
designed to guarantee the security of our population.
Essentially, you have an insurance contract that can’t
be relied on. You have an insurance contract that
can’t be trusted.

Man: And I think its a terrible thing in this country
where men who work forty-five years have to eat yes-
terday’s bread. And I don’t want to compete on my
old age against other old men on old age running down
a supermarket aisle to get dented cans and stale
breads. I don’t want to look forward to it. So lI
really have nothing to look forward to at sixty-five.

(DANCE MUSIC)

17a

and helps to keep people honest. That’s why these files
are full of pension plans, private pension plans...

The Labor Department has the right to audit them
and to a limited extent, where wrongdoing is dis-
covered, the government may prosecute. Also, the re-
ports are available to anybody who asks to see them,
but as it works out that is meager protection for the
twenty-five million Americans who are in private pen-
sion plans.

There are millions of hopes and dreams in these files.
If experience is any guide, very many of the hopes will
prove to be empty and dreams will be shattered and
the rosy promises of happy and secure retirement and
a vine covered cottage will prove to be false.

By way of example of the complaints filed with the Depart-
ment of Labor with respect to the operation of private pen-
sion plans, the statements of several men and women were
presented, each relating his or her personal experience
with a plan which had failed. The program then presented
interviews with various public figures who commented on
different aspects of the private pension system:

Hersert DenneNBERG: When jou get to be sixty-five,
you’re out of work and you need a source of money
and that’s what a pension plan is supposed to do.
Unfortunately, it’s woefully inadequate. Over half
the people have nothing at all from pension plans and
those that do typically have only a thousand dollars
a year so even if you have social security, most pen-
sion funds are inadequate.

Newman: Many employees form their ideas about
pensions by reading the slick brochures that their
company or union gives them. Most of these booklets
do make a pension seem a sure thing. The many re-

Mr. Edwin Newman’s narration began at the Department
of Labor office where the annual pension reports required concealed by obscure language.

by law are filed: ; ,
; The Senate Labor Committee has been looking at
There is a widely held belief in this country that public these brochures as part of its general study of the
disclosure is a good thing that it inhibits misconduct

strictions and exclusions are buried in fine print or

SO ee »° Meas ‘th

18a

pension problem. Senator Harrison Williams is chair-
man of the committee.

Senator WriuiaMs: I have all kinds of descriptions
of plans here and all of them just suggest the cer-
tainty of an assured benefit upon retirement. Here’s
a man—this was from a brewery, sitting relaxed with
a glass of beer and checks coming out of the air; well,
you see, this gives a false hope, a sense of false se-
curity.

Newman: Senator, the way private pension plans are
set up now, are the premises real?

WituiaMs: The answer is, they are not.

DeNNENBERG: It’s almost an obstacle course and the
miracle is when someone actually collects with the
plan. There have been studies that indicate that most
people won’t collect. I think we need controls of the
same type we apply to insurance companies, your
money should be funded so it’s going to be there at
age sixty-five. Today, it’s almost a miracle if it’s
there at age sixty-five. You have to go to work for
an employer, you have to stay with him, you have to
stay in good health, vou have to avoid layoffs, you have
to take your money, turn it over to the employer, hope
that he invests it safely and soundly, you have to hope
that when you’re age sixty-five the employer is still
around and he’s not likely to be in terms of the high
mortality of business, so there’s almost a sequence of
miracles which you’re counting on.

The remainder of the one-hour program continued along
similar lines. Specific private pension plans which had
failed were cited and discussed in interviews with em-
ployees involved, the discussion dealing with such matters
as the portability and vesting of pension rights, the ad-
equacy of funding and payments upon retirement, and the
fiduciary relationship bet'veen employees and those who
manage the funds. Interspersed with such discussion of

a . ,
ee Ve Cee ee eee ee Ce ee eee =

19a

specific plans which had not adequately covered one or more
of these particulars were the following general statements:

Maw: I lose faith in a government that allows things
like this. Not long ago I was in New York and I saw
that inscription on the Statute of Liberty. And it
sounded wonderful, you know. Give us your tired and
so on. But what it actually said was, give us your
labor; get these honkies here where we can put them
to work for nothing. That’s what it amounted to.

Victor Gorsaum: In the United States we have a
magnificent ability to cover up our owr diseases
; specially the disease of big business. Pensions in
ihe private area are a mockery. They’re a national
disgrace. We know this.

Epwarp Kramer: These people feel who worked all
their lives and let’s say they worked thirty-five, forty
years, and many of them have worked for one employer
for all these years, are, they feel that now that they’ve
retired, they’re going to live a better life... And then
they find themselves in the position that they have no
money, they have no friends. And they live in squalor
and they can’t do these things. So what—they’ve
really been cheated, cheated by the pension system,
cheated by social security, cheated by their employer
and they feel very angry at themselves because I think
in the back of their mind, they knew this was going to
happen. They knew that when the day came that they
would retire, they would be worse off than when they
were working. But they’re afraid to admit it.

Kramer: Going to a movie is a big expense, taking a
bus to a clinic to visit a doctor is a big expense, buying
a new pair of shoes is a big expense, getting ill and
having to get medicine is a big expense. This is where,
if there was an adequate pension system in the United
States along with social security, some of these pro-
blems could be avoided.

20a

Newman: Pension funds have outgrown the laws reg-
ulating them. No government agency has enough
staff or authority to control them...

CuarLes Rurr: We have no real idea of how much
fraud there may be in the pension plan area. But
you’re talking about institutions, the pension plan
area, generally, that deals in hundreds of billions of
dollars. And when you have that much money in-
volved, the federal government ought to take a more
active role than it does.

DreNNENBERG: We regulate insurance completely. We
regulate the agent the contract, reserve, the policies,
the sales technique, the investment, we regulate in-
surance companies from birth to death. And yet we
have a gigantic pension system, almost the size of the
insurance industry, a hundred and fifty billion dollar
business that’s essentially unregulated. Can you
imagine what would happen if we would let insurance
companies do whatever they wanted to? We can’t even
protect the public with full regulation in insurance,
but essentially we have a pension system which is pre-
cisely an insurance plan and which is almost unre-
gulated.

7. Lom

2la

there are five million people receiving about seven
billion dollars in benefits. I think that’s a pretty good
record. That’s not to say that there aren’t a few re-
maining loopholes that need closing but we ought to
make sure that we don’t throw out the baby with the
wash water.
eo * @

Gorrsaum: The solutions in the wealthiest country in
the world is not do what they’ve been doing in terms
of pensions. You fund a pension. You fund it on the
basis of man’s ability to live. You tie it into the cost
of living. The wealthiest country in the world ought
to be able to do it.

Kennern Anperson: You must remember that the
corporation has set this plan up voluntarily. They
have not been required by law to set it up. [Inter-
viewer: So that it gets from the employer to the em-
ployee?] That’s what it amounts to.

Dennenserc: I say it’s the employee’s money and I
think that is the economic fact of life and I think in
terms of the morals of the problem and in terms of the
economics of the problem, that anyone would conclude
that it does belong to the employee and yet it’s not be-

Toward the end of the program, the following statements ing used for his benefit.
were presented as those of ‘‘critics’?’ who recommend ) © ° °
‘‘changes’’ in the private pension system: Anperson: These pension plans are a part of a fringe

Ratrn Naper: I think time is running out. On the
private pension systems. And its abuses continue to
pile up, and if its enormous popular disappointments
begin to be more and more revealed, it might collapse
of its own weight, and social security will have to take
up the slack.

Russet: Hvussarp: Over a good number of years, the
track record is excellent. It’s unfortunate that every
now and then some of the tragic cases make the news-
papers and the headlines. But it’s a question of per-
spective and balance. When you consider that there
are thirty million people covered by the plans, that

benefit package. Like hospitalization insurance and
so forth, but its still a voluntary thing on the part of
the corporation.

Gottsaum: So all I can say is my God how can you
hold to that view. Do you mean, people are supposed
to starve, that people are supposed to live on a sub-
sistence money because they are not unique, and that,
by the way is the same attitude that gives top manage-
ment stock options, gives them retirement after a
small serving period whereas the middle worker, the
lower economic worker takes a terrible beating.

22a

Senator Scuwerker: What we’re proposing to do a
little bit what was done with the bank failure problem.
We didn’t go in and take over the banks but we did, by
means of insurance and federal deposit insurance
corporation come in and guarantee that no depositor
would lose his savings under a certain point. And I
think that’s what we’re saying here, that once a worker
has put in eight years time, once he’s reached a cer-
tain age, once his company’s reached a certain point,
then he doesn’t lose it, regardless of what happens to
his company or the country.

Man: What are they waiting for? What the hell are
they waiting for? Do they have to give us a certain
quota, a certain number of people that have to be
victims? Do they have to give us a certain amount
of money? How many billions must it take before
they do something about this? How many people have
to starve? How many people have to lay on the side-
lines and just hope and pray. How much misery do
they want before they actually act upon it?

Mr. Newman then concluded the program with the fol-
lowing remarks:

This has been a depressing program to work on but
we don’t want to give the impression that there are
no good private pension plans. There are many good
ones, and there are many people for whom the promise
has become reality. That should be said.

There are certain technical questions that we’ve dealt
with only glancingly ... [portability, vesting, funding,
and fiduciary sor MENA

These are matters for Congress to consider and, in-

. deed, the Senate Labor Committee is considering them
now. They are also matters for those who are in pen-
sion plans, If you’re in one, you might find it useful
to take a close look at it.

Our own conclusion about all this is that it is almost
inconceivable that this enormous thing has been al-
lowed to grow up with so little understanding of it and

- < ae) 2 es om 6 are.

}
,
:

23a

with so little protection and such uneven results for
those involved.

The situation, as we‘ve seen it, is deplorable.

19. This review clearly supports the staff’s finding that
‘‘The Pensions program... did in fact present views which
were broadly critical of the performance of the entire
private pension system and explicitly advocated and sup-
ported proposals to regulate the operation of all private
pension plans.’’ 40 FCC 2d at 966. And, as the program
itself noted, such views were presented at a time when the
Congress was engaged in a study of private pension plans
and considering proposed legislation for their regulation—
legislation which was opposed in whole or in part by vari-
ous private and public groups and spokesmen. In its re-
port In the Matter of Editorializing by Broadcast Licen-
sees, 13 FCC 1246 (1949), the Comunission stated:

... In appraising the record of a station in presenting
programs concerning a controversial bill pending be-
fore the Congress of the United States, if the record
disclosed that the licensee had permitted only advo-
cates of the bill’s enactment to utilize its facilities
to the exclusion of its opponents, it is clear that no
independent appraisal of the bill’s merits by the Com-
mission would be required to reach a determination
that the licensee had misconstrued its duties and obli-
gations as a person licensed to serve the public inter-
est. Jd. at 1256; quoted with approval in New Broad-
casting Co. (WLIB), 6 R. R. 258 (April 12, 1950).

We believe that this principle of fairness is applicable
here. Although the ‘‘Pensions’’ program did not spe-
cifically identify or advocate passage of any particular
bill pending in the Congress, it did present views that
existing laws offer only ‘‘meager protection,’’ that ‘‘pen-
sion funds have outgrown the laws regulating them,’’ that
‘‘the federal government ought to take a more active role

24a

than it does,’’ and that ‘‘controls of the same type we
apply to insurance companies’’ are needed. The program
also presented the views of two Senators, one denying the
validity of the ‘‘premises’’ underlying private pension
plans, the other advocating a proposal to guarantee the
vesting of pension rights. And throughout the program,
the entire private pension system was characterized in such
terms as ‘‘essentially a consumer fraud, a shell game and
a hoax,’’ ‘‘ woefully inadequate,’’ a ‘‘mockery,’’ and a ‘‘na-
tional disgrace.’’ As the foregoing review of the program
illustrates, these examples are by no means exhaustive of
the views which were in fact presented and in this regard,
we do not believe it inaccurate to cite Mr. Neuman’s clos-
ing remarks as indicative of the actual scope and substance
of the viewpoints broadcast in the ‘‘Pensions’’ program:

Our own conclusion about all this is that it is almost
inconceivable that this enormous thing has been al-
lowed to grow up with so little understanding of it and
with so little protection and such uneven results for
those involved. The situation, as we’ve seen it, is
deplorable. (Emphasis added).

Given these facts and circumstances, we cannot accept as
reasonable a judgment that the ‘‘Pensions’’ program did
not present views advocating one side of a controversial
issue of public importance within the meaning of the fair-
ness doctrine, that issue being the overall performance
of the private pension system and the need for govern-
mental regulation of all private pension plans.

20. Our conclusion is not based upon a singling out,
‘‘line-by-line’’ or ‘‘statement-by-statement,’’ of isolated
expressions of viewpoints, a procedure we rejected in Na-
tional Broadcasting Co., 25 FCC 2d 735 (1970). Rather
it appears to us to be the only conclusion which can be
drawn upon review of the program in its entirety, and one
which could be avoided only by ignoring a significant and
substantial part of the material presented. We note here

a Se es

oe ee ek ee

ee os

a eh ite 9 Stee

:

25a

that in light of the presentation of so many statements
sharply criticizing the performance of the entire pension
system and strongly recommending the regulation of all
private pension plans, it would be an unrealistic oversim-
plification to characterize the program as one addressing
only ‘‘some problems of some pension plans.’’ The pro-
gram did examine such problems, but it would strain the
most ‘‘permissive standard of reasonableness’? past the
breaking point to imply that the program was confined to
such a limited examination. Indeed, the value of investi-
gative reporting is to raise matters of substantial public
interest, and it would be denigrating this high purpose to
characterize it in such terms, It is difficult to see why a
network would devote its time and effort to a program with
no broad impact or value, and we cannot agree that NBC
has done so here.

21. Having thus presented viewpoints on one side of the
issue of the overall performance and need for regulation
of the private pension system,° NBC was obligated under
the fairness doctrine to afford reasonable opportunity in
its overall programming for the presentation of contrast-
ing views. In its response to the staff’s inquiry, NBC
stated that prior to the ‘‘Pensions’’ program, it had not
‘‘telecast any program dealing extensively with private
pensions,’’ and that it had formulated no definite plans to
present further programming related to the subject of
pensions in the future. 40 FCC 2d at 967. Thus, the only
NBC programming in which contrasting views might have
been presented was the ‘Pensions’? documentary itself.
In a footnote to its Application for Review, NBC appears
to argue that the program, in any event, did afford a
reasonable opportunity for contrasting views in that
‘There were at least 3 statements on the program that

5 We should also point out that a program examining serious
faults in an existing situation can of course present one side of an
issue even though no remedial proposal is presented.

26a

were—by any definition—pro-pension plan.’’’ Here it
cites the above-quoted statements of Messrs. Russell Hub-
bard and Kenneth Anderson and Mr. Neuman’s conclud-
ing remark that there are ‘‘many good [pension plans],
and there are many people for whom the promise has be-
come a reality.’’ We believe, however, that the staff was
correct in its finding that although these statements ‘‘could
be taken to present a contrasting view, they alone cannot
be said to have afforded the reasonable opportunity con-
templated by the fairness doctrine when compared to the
views presented during the remainder of the program.’’
As we have stated, while ‘‘there is no mathematical
formula’’ for achieving fairness, ‘‘the sheer weight on
one side as against the other’’ may indicate that no reason-
able opportunity has in fact been afforded. Committee for
the Fair Broadcasting of Controversial Issues, supra, at
293, As our review of the program indicates, it is not
necessary to apply any ‘‘mathematical’’ formula here to
ascertain that the overwhelming weight of the statements
presented in the program supported the view that the
overall performance of private pension plans was ‘‘deplor-
able’’ and that the pension system should be regulated to
rectify that situation, and that the ‘‘pro-pension”’’ state-
ments cited by NBC were insufficient in either number or
substance to constitute a reasonable opportunity for the
presentation of an opposing viewpoint . The staff, there-
fore, properly requested NBC to advise the Commission
as to how it intended to meet its obligation under the fair-
ness doctrine to afford such opportunity.

22. NBC broadly contends that any affirmance of the
Bureau’s ruling by the Commission would be ‘‘inconsistent
with the declared purpose of the fairness doctrine’’ to in-
sure an ‘‘uninhibited, robust, and wide open’’ discussion
of public issues and would lead broadcasters ‘‘to take a
bland course rather than a brave one.’’ In support of this
conclusion, NBC submits that the ‘‘concept’’ and ‘‘essence”’
of the staff’s decision is that ‘‘whenever a social problem

oe Pat ee et, ta ee Re 209 Be Das

27a

is exposed. . ., ‘balance’ must be achieved by including
‘positive’ material to minimize the nature of the problem’’
and that ‘‘unless NBC is prepared to promise further pro-
gramming setting forth at still greater length than in
‘*Pensions’’ the view that the pension system as a whole
is a success, NBC may not broadcast its program examin-
ing some problems in private pension plans.’’ Such a re-
sult, NBC claims, would be ‘‘antithetical to the essence of
journalism itself’’ and would place the Commission at ‘‘the
center of the journalistic process.’’”’ We cannot agree.
First of all, NBC should understand that our fairness doc-
trine ruling indicates no Commission view as to the merits
of the program, and certainly no suggestion that this par-
ticular program was in any sense flawed or improper. We
have previously stated our recognition of the value of
investigative reporting and our steadfast intention to do
nothing to interfere with or inhibit it. See WBBM-TV, 18
FCC 2d 124, 134 (1969); Hunger in America, 20 FCC 2d
143, 150 (1969). However, while NBC is to be commended
for airing such an ‘‘uninhibited, robust, and wide open’’
presentation of one side of the pensions issue, we cannot
sanction its reluctance to afford a reasonable opportunity
for opposing viewpoints to be heard. This is the crux of
the matter. The issue is not whether NBC or any other
licensee or network is free to deal with an issue as it sees
fit, but whether it may constitutionally be required to pre-
sent the views of others who may see the issue from a dif-
ferent perspective. This issue has been decided adversely
to NBC’s present position in Red Lion Broadcasting Co. v.
FCC, 395 U. S. 367 (1969), unless for some particular
reason the effect of our ruling in this case is to impair
NBC’s capacity to pursue its journalistic function.®

® As the Commission stated in its report In the Matter of Edi-
torializing by Broadcast Licensees, supra:

It is axiomatic that one of the most vital questions of mass
communication in a democracy is the development of an in-
formed public opinion through the dissemination of news and

28a

23. NBC does not dispute that there are many private
and public groups and spokesmen who oppose the view
that the overall performance of the private pension sys-
tem is so ‘‘deplorable’’ as to require remedial legislation.
And we see no impediment to affording the public a rea-
sonable opportunity to be informed of those opposing view-
points and to weigh their merit. As we have often stated,
the opposing views need not be presented in the same
program; there is thus no basis for any claim that our
ruling makes impossible the sort of program NBC has
already presented. NBC was free to determine format,
spokesmen, time, and similar matters, as it thought best.
We are unable to understand what prevented it from af-
fording a further opportunity to those with differing views,
aside from a reluctance to make more time available. Any
such reluctance of course would not be a valid reason under
the fairness doctrine nor a basis for a claim of intrusion
upon its right of free expression. That is a cardinal teach-
ing of the Supreme Court’s affirmance of the fairness doc-
trine which may not yet be fully understood.’

ideas concerning the vital issues of the day ... The Com-
mission has consequently recognized the necessity for licensees
to devote a reasonable percentage of their broadcast time to
the presentation of news and programs devoted to the con-
sideration and discussion of public issues of interest in the
community ... And we have recognized, with respect to such
programs, the paramount right of the public to be informed
and to have presented to it for acceptance or rejection the
different attitudes and viewpoints concerning those vital and
often controversial issues which are held by the various groups
which make up the community. Id. at 1249 [Emphasis
added]

*See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) :

Where there are substantially more individuals who want to
broadcast than there are frequencies to allocate, it is idle to
posit an unabridgeable First Amendment right to broadcast

29a

24. Furthermore, neither the staff’s ruling nor our af-
firmance of its decision here holds that NBC must now pro-
duce and broadcast another one-hour documentary ‘‘deal-
ing with happy pensioners”’ or portraying the pension sys-
tem as ‘‘a success.’ As we have stated, NBC’s obligation
is to afford a reasonable opportunity in its overall pro-
gramming for the public to be informed as to the views
of groups or individual spokesmen opposed to the view-
point that the private pension system has performed poorly
and should be regulated. Just as NBC was not required
to present those views in its ‘‘Pensions’’ documentary, it
is not now required to present them in any particular pro-
gram or format. There is no requirement that any precisely
equal balance of views be achieved, and all matters con-
cerning the particular opposing views to be presented and
the appropriate spokesmen and format for their presenta-
tion are left to NBC’s discretion subject only to a standard
of reasonableness and good faith. We note in this regard
that NBC cites a long list of subjects concerning the vest-
ing and portability of pension rights, the adequacy of plan
funding and payments upon retirement, and the fiduciary
relationship in pension plan management, and claims that
under the staff’s analysis and ruling each of these might be

comparable to the right of every individual to speak, write, or
publish. 395 U.S. at 388.

(T)he First Amendment confers no right on licensees to
prevent others from broadcasting on ‘‘their’’ frequencies and
no right to an unconditional monopoly of a scarce resource
which the government has denied others the right to use. 395
US. at 391.
e e *

There is no sanctuary in the First Amendment for unlimited
private censorship operating in a medium not open to all.
‘*Freedom of the press from governmental interference under
the First Amendment does not sanction repression of that
freedom by private interests.’’ 395 U.S. at 392 (Citation
omitted ).

30a

considered a distinct cortroversial issue of public import-
ance entitled to separate treatment under the fairness
doctrine, However, neither the staff’s ruling nor our deci-
sion here gives grounds for such an overly-broad interpre-
tation. While each of the subjec‘s cited is an aspect of
overall pension plan performance, there is no information
before the Commission to indicate that these subjects are
by themselves independent controversial issues of public
importance. NBC may very well consider these subjects
in determining what contrasting viewpoints to present on
the overall issue of the performance and need for regula-
tion of private pension plans, but the applicability of the
fairness doctrine to that issue does not require their wholly
separate treatment or discussion. See National Broad-
casting Co., supra, at 736-37. Under these circumstances
we can see no merit in NBC’s argument that the ruling in
this case is inconsistent with either the purpose of the
fairness doctrine or the journalistic discretion afforded
the broadcaster in determining how to comply with his
fairness obligations.

25. Little more need be said with respect to NBC’s con-
tention that this particular application of the fairness
doctrine marks an unwarranted intrusion into the jour-
nalistie process or is in any way violative of broadcaster
prerogatives protected by the First Amendment. While
we have consistently recognized the journalistic discretion
afforded licensees under our system of broadcasting and
the need for Commission deference to licensee judgments
in matters concerning their news and news documentary
programs, we cannot uphold a patently unreasonable exer-
cise of that discretion which would deny the right of the
public to be informed as to both sides of a controversial
issue which in fact has been presented by such program-
ming. As the Supreme Court stated in affirming the con-
stitutionality of the fairness doctrine

The people as a whole retain their interest in free
speech by radio and their collective right to have the

3la

medium function consistently with the ends and pur-
poses of the First Amendment . . . It is the right of the
viewers and listeners, not the broadcasters, which is
paramount, It is the purpose of the First Amend-
ment to preserve an uninhibited marketplace of ideas
in which truth will ultimately prevail, rather than to
countenance monopolization of that market, whether
it be by government itself or a private licensee. . . Red
Lion Broadcasting Co. v. FCC, 395 U. 8S. 367, 390
(1968) [Emphasis added].

If the broadcaster’s First Amendment interest in freedom
of journalistic expression is greatest in the area of the
presentation ef news and news documentaries, then the
right of the public to have access to the various competing
viewpoints on controversial issues discussed in such pre-
sentations is certainly no less compelling. News and news
documentaries usually treat of public affairs, and for this
reason perhaps no other vehicles of broadcast speech
should function more consistently with the First Amend-
ment’s purpose of fostering ‘‘uninhibited, robust, and wide
open’’ debate with respect to the public issues which they
present and discuss. NBC has a journalist’s role; it has
an additional role as a public trustee of providing a forum
for diverse views on public issues. The two roles are not
incompatible.

26. We note NBC’s reliance on the recent decision of the
Supreme Court in Columbia Broadcasting System v. Demo-
cratic National Committee, 412 U. S. 94, 36 L. Ed. 2d 772
(1973) which held that neither the public interest standard
nor the First Amendment requires broadcasters to sell
commercial time to persons wishing to discuss controversial
issues. Although NBC cites the Court’s affirmation of
licensee discretion in the selection and choice of broadcast
material as controlling the questions presented here, see
412 U.S. 124, 36 L. Ed. 2d at 796 (1973), there is nothing in
the Court’s opinion to suggest that such journalistic dis-

32a

eretion relieves the broadcaster of his obligation to the
publie to cover fairly those issues which he in fact pre-
sents. To the contrary, the Court emphasized that con-
centrating the ‘‘allocation of journalistic priorities”’ in the
licensee ‘‘gives the public some assurance that the broad-
easter will be answerable if he fails to meet its legitimate
needs,’’ 412 U.S. at 125, 36 L. Ed. 2d at 796. Similarly, in
rejecting the contention that ‘‘the Fairness Doctrine per-
mits broadcasters to preside over a ‘paternalistic’ regime,’’
the Court stated:

That doctrine admittedly has not alwa. brought to
the public perfect or indeed even consistently high
quality treatment of all public events and issues; but
the remedy does not lie in diluting licensee responsi-
bility . . . [W]hile the licensee has discretion in ful-
filling his obligations under the Fairness Doctrine, he
is required to ‘‘present representative community
views and voices on controversial issues which are of
importance to his listeners.’’ 412 U. S. 94, 36 L. Ed. 2d
at 799-800 [Emphasis added]

We therefore can see no valid First Amendment ground
for allowing the private journalistic interests of licensees
to destroy their public obligation to afford a reasonable
opportunity for the presentation of contrasting views on
controversial issues raised in news and news documen-
taries. As the Court held in its decision in Red Lion, supra:

There is nothing in the First Amendment which pre-
vents the Government from requiring a licensee to
share his frequency with others and to conduct him-
self as a proxy or a fiduciary with obligations to pre-
sent those views and voices which are representative
of his community and which would otherwise, by neces-
sity, be barred from the airwaves. 395 U. S. 367, 389.

We have discussed these matters at length, and perhaps
somewhat repetitiously, because, although not novel, they

33a

are important and we wish to be perfectly clear, to the
end that licensees will feel no improper constraint but will
be reminded of their legal obligations.

27. One further matter deserves attention here. Infor-
mation before the Commission indicates that pending our
review of the Bureau’s ruling in this matter, AIM sent
correspondence to NBC affiliates stating that it would enter
notice of the staff’s finding in the renewal file of each
station carrying the ‘‘Pensions’’ program and requesting
that it be advised as to whether or not the affiliate had
broadcast the program, and, if so, what it had presented
to comply with its fairness obligations. AIM should be
advised that while licensees remain ultimately responsible
for the programming which they carry, the Commission
has held that they may initially look to network action for
compliance with broadcast obligations originating with
network programming . See Blair Clark, 11 FCC 2d 511
(1960). More importantly, AIM should note that under
the Commission’s Rules and Regulations a party adversely
affected by a staff ruling issued pursuant to delegated
authority may seek review of that ruling by the full Com-
mission as a matter of right. See 47 C. F. R. See. 1.115.

28. Accordingly, Ir Is Orperep, That NBC’s Applica-
tion for Review Is Dentep. It is further ordered that NBC
submit a statement within 20 days of the date of this deci-
sion indicating how it intends to fulfill its fairness doctrine
obligations in accordance with this opinion.

FeperRAL ComMMUNICATIONS COMMISSION

Vincent J. MuLLINsS
Secretary

34a

UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT

No. 73-2256.

NationaL Broapcastine Company, Inc., Petitioner,
v.

FEpERAL ComMUNICATIONS ComMIssIon and the
Unirep States or America, Respondents,

Accuracy rn Mep1, Inc., Intervenor.
Argued Feb. 21, 1974.
Decided Sept. 27, 1974.

Order Vacating Opinion Dee. 13, 1974.
Orders March 18 and 19, 1975.
Dissenting Opinion June 2, 1975.
Judgment Vacated July 11, 1975.

Before Fany, Senior Circuit Judge, and Tamm and Lev-
ENTHAL, Circuit Judges.

LevenTHAL, Cireuit Judge:

. On September 12, 1972, the television network of the Na-
tional Broadcasting Company broadcast its documentary
entitled ‘‘Pensions: The Broken Promise,’’ narrated by
Edwin Newman. On November 27, 1972, Accuracy in
Media (AIM) filed a complaint with the Federal Commu-
nications Commission charging NBC had presented a one-
sided picture of private pension plans. The handling of
this case by the Commission will be discussed in more de
tail subsequently (section II). For introductory purposes

35a

it suffices to say that on May 2, 1973—as it happens, the
same day NBC received the George Foster Peabody Award’
for its production—the Commission’s Broadcast Bureau
advised NBC that the program violated the Commission’s
fairness doctrine.? That decision was upheld by the Com-
mission. We reverse.

I. Tue Procram

The ‘‘Pensions’’ program is the heart of the case, and
for that reason it is set out in Appendix A to this opinion.

For convenience, we will summarize the main outlines of
the program—with notation that certain aspects are dealt
with more fully subsequently.

The ‘‘Pensions’’ program studied the condition under
which a person who had worked in an employment situa-
tion that was covered by a private pension plan did not in
fact realize on any pension rights. Its particular focus
was the tragic cases of aging workers who were left, at the
end of a life of labor, without pensions, without time to de-
velop new pension rights, and on occasion without viable
income.

The program had no set format, but its most prominent
feature was a presentation of tragic case histories, often
through personal interviews with the persons affected.

One group of workers lost pension eligibility when their
company decided to close the division in which they had
worked. The first of these was Steven Duane, who after
17 years with a large supermarket chain, lost his job as
foreman of a warehouse when the company closed the ware-

1In addition to the Peabody Award, the program was awarded
a Christopher Award, a National Headliner Award, and a Merit
Award of the American Bar Association. It was also an Emmy
nominee. See Schmerler Affidavit 10, JA 121-22.

2 See Letter of FCC to NBC, May 2, 1973, JA 55, 66-67.

36a

house and discharged all its employees, leaving them with
no job and no pension rights. Now in his fifties, he felt
ill-used and frightened of the future.

There were a number of other specific examples of em-
ployees terminated by closing of plants or divisions. The
program also focused on the problems of vesting, the years
of service with the company required for a worker to be-
come eligible under its pension plan. NBC interviewed
employees with many years of service who were suddenly
discharged just prior to the date on which their pension
rights were to have become vested. Thus Alan Sorensen
asserted that he was the victim of a practice—a ‘‘very
definite pattern’’—under which his employer, a large de-
partment store chain, fired men just prior to vesting, as-
signing ‘‘shallow’’ reasons to men who had served with
records beyond reproach.

A similar account was given by Earl Schroeder, an ex-
ecutive fired by Kelly Nut Company, after he more than
met his 20 years of service requirement but was six months
shy of the age 60 condition,

The program also set forth abuses in the literature given
employees ostensibly explaining their plans—pictures of
contented retirees and words comprehensible only to the
most sophisticated legal specialist. It took up examples
where the company had gone bankrupt prior to their date
of retirement, leaving the employees without pension funds.

The documentary gave instances of pensions lost for lack
of portability, citing plans that required the employee be
a member of the same local for the requisite period. NBC
interviewed a number of teamsters who had worked for
the same employer for over twenty years, but who later
found that certain changes in work assignment entailed
changes in union local representation and ultimately loss
of pension.

Much of the program was a recount of human suffering,
interviews in which aging workers described their plight

37a

without comment on cause or remedy. They told of long
years of working in the expectation of comfortable retire-
ment, finding out that no pension would come, having to
work into old age, of having to survive on pittance incomes,
Interspersed with these presentations by workers were
comments by persons active in the pension field, public
officials, and Mr. Newman.

None of those interviewed—and these included two
United States Senators, a state official, a labor leader, a
representative of the National Association of Manutac-
turers, a consumer advocate, a bank president, and a social
worker—disputed that serious problems, those covered by
the documentary, do indeed exist. Some of the comments
related to the overall performance of the private pension
system. We shall discuss these later (section VI B). In
addition to comments on the private system generally, there
were isolated expressions of views on the related but none-
theless quite distinct issue of the wisdom of reliance on
private pensions, regardless of how well they function, to
meet the financial needs of retirees.* Finally, several
speakers gave broad, general views as to what could be

done.*

There were also comments on legislative reforms that
might be taken to cope with problems, These will be dis-
cussed separately in part VI D of this opinion.

Concluding Remarks

It may be appropriate to quote in full the concluding re-
marks of narrator Edwin Newman, since the FCC consid-
ered them ‘‘indicative of the actual scope and substance of

ml

3 See Dennenberg Statement, Tr. at 4; Kramer Statement, Tr. at
13-14.
4 See Dennenberg Statement, Tr. at 5; Newman description of

Nader ition, Tr. at 18; Hubbard Statement at 18; Anderson
were Tr. at 18-19; Gotbaum Statement, Tr. at 18; Schweiker

Statement, Tr. at 19.

38a

the viewpoints broadcast in the ‘Pensions’ program.’’ He
said:

Newman: This has been a depressing program to work
on but we don’t want to give the impression that there
are no good private pension plans. There are many
good ones, and there are many people for whom the
promise has become reality. That should be said.

There are certain technical questions that we’ve dealt
with only glancingly, portability, which means, being
able to take your pension rights with you when you go
from one job to another, vesting, the point at which
your rights in the pension plan become established and
irrevocable.

Then there’s funding, the way the plan is financed so
that it can meet its obligations. And insurance, mak-

ing sure that if plans go under, their obligations can
still be met,

Finally, there’s what is called the fiduciary relation-
ship, meaning, who can be a pension plan trustee?
And requiring that those who run pension funds ad-
here to a code of conduct so that they cannot enrich
themselves or make improper loans or engage in funny
business with the company management or the union
leadership.

These are matters for Congress to consider and, in-
deed, the Senate Labor Committee is considering them
now. They are also matters for those who are in pen-
sion plans. If you’re in one, you might find it useful
to take a close look at it.

Our own conclusion about all of this, is that it is almost
inconceivable that this enormous thing has been al-
lowed to grow up with so little understanding of it and
with so little protection and such uneven results for
those involved.

The situation, as we’ve seen it, is deplorable.
Edwin Newman, NBC News.

39a

Success of Program

Like many documentaries, ‘‘Pensions’’ was a critical suc-
cess (supra, note 1) but not a commercial success. We
shall consider the television reviews in more detail subse-
quently, but it may be observed here that they were gener-
ally enthusiastic. Critics called it, “A potent program
about pitfalls and failures of some private pension plans

.,” ‘a harrowing and moving inquiry..., and ‘‘a
public service.’’® Dissenting notes were also struck,

As to the viewing public, ‘‘Pensions’’ ran in competition
with a popular medical drama and a crime movie, and ran
a poor third, garnering only a 16% share of the viewing
audience. In fact, NBC was able to sell only two-and-one-
half minutes of advertising time out of an available six.°

II. Commission PRoceEDING

Watching the program with particular interest was Ac-
curacy in Media (‘‘AIM’’), a ‘‘nonprofit, educational or-
ganization acting in the public interest’’’ that seeks to
counter, in part by demanding aggressive enforcement of
the fairness doctrine, what it deems to be biased presenta-
tions of news and public affairs. On November 27, 1972,
the Executive Secretary of AIM wrote to the FCC com-
plaining of the following:

Our investigation reveals that the NBC report gave
the viewers a grotesquely distorted picture of the pri-
vate pension system of the United States. Nearly the
entire program was devoted to criticism of private
pension plans, giving the impression that failure and
fraud are the rule.... The reporter, Mr. Newman,
said that NBC did not want to give the impression that

5 See summary of reviews, Appendix B.
® Frank Affidavit, JA 125-26.
7 Letter of AIM to FCC, July 2, 1973, JA 148.

40a

there were no good private pension plans, but he did

not discuss any good plans or show any satisfied pen-
sioners.®

In subsequent correspondence, AIM added the accusations
that NBC was attempting ‘‘to brainwash the audience with
some particular message that NBC is trying to convey”? ®
and that the program was ‘‘a one-sided, uninformative,
emotion-evoking propaganda pitch.’’® Thus ATM not only
claimed that the program had presented one side of an
issue of public importance, the performance of private
pension plans, it also charged that NBC had deliberately

distorted its presentation to foist its ideological view of
events on the viewing public.

In its reply, NBC rejected the allegations of distortion.
It asserted that the ‘‘Pensions’’ broadcast had not con-
cerned a controversial issue of public importance:

The program constituted a broad over-view of some of
the problems involved in some private pensions plans,
It did not attempt to discuss all private pension plans,
nor did it urge the adoption of any specific legislative
or other remedies. Rather, it was designed to inform
the public about some problems which have come to

light in some pension plans and which deserve a closer
look."

Since, in the view of NBC, there was no attempt to com-
ment on the overall performance of private pension plans,
no controversial issue had been presented, for all agreed
that the examples of suffering depicted were not themselves
subject to controversy. Even so, NBC pointed out that it

* Letter of AIM to FCC, November 27, 1972, JA 1.
* Letter of AIM to FCC, February 20, 1973, JA 48,
Letter of AIM to FCC, April 11, 1973, JA 54,

' Letter of NBC to FCC, February 14, 1973, JA 41,

4la

d the view that the system as a whole was
rah, ver compen consequently, it asserted, even if it had
inadvertently raised the issue of the overall performance
of private pension plans, the side generally supportive of
the system had been heard.”

In a letter to NBC," the Broadcast Bureau of the Com-
mission rejected AIM’s allegations of distortion as being
unsupported by any evidence but upheld the fairness doc-
trine complaint. The staff took issue with the reason-
ableness of your [NBC’s] judgment that the program did
not present one side of a controversial issue of public im-
portance’? and concluded that the program’s overall
thrust was general criticism of the entire pension system,
accompanied by proposals for its regulation. The pe
opinion included extensive quotation from the transcript o
the documentary, but little explanation as to how the quoted
portions sustained the staff’s conclusion. Only four brief
statements were singled out as containing ‘‘general views
on the overall performance of the private pension system.
NBC appealed the Broadcast Bureau ruling to the entire
Commission.”

On December 3, 1973, the Commission issued a ‘*Memo-
randum Opinion and Order’’ affirming the decision of its
staff.” Although it acknowledged that the broad issue
upon review was ‘‘whether the Bureau erred in its ruling

12J7d., JA 45-46.
18 Accuracy in Media, Inc., 40 FCC 2d 958 (1973).
4 Td. at 963, 966.

i ' 1 and
15 By letter of July 2, 1973, AIM replied to NBC’s appea
as... 8 as an exhibit an article about pensions appearing in the
Washington Post of November 26, 1972, written by Mr. Spencer
Rich. AIM stated that this article ‘‘exemplifies good journalism.
JA 155.

16 44 FCC 2d 1027 (1973), JA 201.

42a

that NBC’s judgment on these matters was unreasonable, ’’
it emphasized that:

The specific question properly before us here is there-
fore not whether NBC may reasonably say that the
broad, overall ‘‘subject’’ of the ‘‘Pensions”’ program
was ‘‘some problems in some pension plans,’”’ but
rather whether the program did in fact present view-
points on one side of the issue of the overall perform-

ance and proposed regulation of the private pension
system.”

The Commission found that ‘‘Pensions’’ had in fact pre-
sented views on the overall performance of the private
pension system. It took note of the ‘‘pro-pensions’’ views
expressed during the documentary, but concluded that the
‘‘overwhelming weight’? of the ‘‘anti-pensions”’ statements
required further presentation of opposing views. The
Commission commended NBC for a laudable journalistic
effort, but found that the network had not discharged its
fairness obligations and ordered it to do so forthwith.
This petition for review followed.

NBC petitioned the Commission for a stay, but was in-
formed that the Commission ‘‘expects prompt compliance
with its ruling.’’ NBC filed a motion in this court for an
expedited appeal, a stay, and expedited consideration. That
motion was heard and granted on February 14, 1974, and
the case was heard on the merits on February 21, 1974.
AIM has intervened on the side of the Commission. The
stay that has been in effect during the pendency of this
appeal reflected, in part, an estimate of the likelihood of
success by NBC as petitioner. We now set forth the rea-

“sons why we have decided that the case should be deter-
mined in favor of NBC."*

"744 FCC 2d at 1034-35, JA 210.

** This opinion also serves to explain the continuation of the
February 14, 1974, stay order during the preparation of the opin-
ion on the merits. See note 88 infra.

43a

III. Tue Farryess Doctrine: GENERAL CoNSIDERATIONS

Petitioners urge that the Commission’s decision be set
aside as a misapplication of the fairness doctrine and a
violation of the First Amendment. Since we reverse on
the former ground, we have no occasion to consider the

latter.

Now twenty-five years old, the fairness doctrine imposes
a double obligation on the broadcast licensee. First, he
must devote a substantial portion of available time to ye
discussion of ‘‘controversial issues of public importance.
When he presents such an issue, the licensee has a further
duty to present responsible conflicting views. The doc-
trine, particularly as applied to newscasts and news docu-
mentaries, has’ been given statutory recognition in section
315 of the Communications Act,” and has been held to in-
here in the ‘‘pubiic interest’’ standard governing the grant
of license applications and renewals.”

The essential task of the fairness doctrine is to harmo-
nize the freedom of the broadcaster and the right of the
public to be informed. Except for limited areas like libel
and obscenity, the First Amendment generally forbids gov-

19 In the Matter of Editorializing by Broadcast Licensees, 13
FCC 1246, 1249 (1949).

2 Jd. This duty extends to making free time available if those
holding responsible conflicting views are unable to purchase air
time. Cullman Broadcasting Co., 40 FCC 576, 577 (1963).

2147 U.S.C. §315(a) reads in part:

Nothing in the foregoing sentence shall be construed as pr
lieving broadcasters, in connection with the presentation ry)
newscasts, news interviews, news documentaries, and on-the-
spot coverage of news events, from the obligation sane
upon them under this chapter to operate in the public interes
and to afford reasonable opportunity for the discussion of con-
flicting views on issues of public importance.

22 Red Lion v. FCC, 395 U.S. 367, 379-386, 89 S.Ct. 1794, 23
L.Ed.2d 371 (1969).

4ta

ernment regulation of the content of journalism. Not only
is state censorship forbidden, so also is the government
prohibited from compelling editors to include state ap-
proved material. Even a carefully limited statute giving
political candidates attacked on a newspaper’s editorial
page the right to reply in kind was recently invalidated by
the Supreme Court as an unconstitutional encroachment
upon journalistic discretion. In Miami Herald Publishing
Company v. Tornillo,* a ‘‘right to reply’’ law—analogous
to the personal attack rule that is part of the fairness doc-
trine—was ruled unconstitutional. The ‘‘benign’’ purposes
of the state statute were deemed irrelevant:

[T]he Florida statute fails to clear the barriers of the
First Amendment because of its intrusion into the
function of editors. A newspaper is more than a pas-
sive receptable or conduit for news, comment, and ad-
vertising. The choice of material to go into a news-
paper, and the decisions made as to limitations on the
size of the paper, and content, and treatment of public
issue sand public officials—whether fair or unfair—
constitutes the exercise of editorial control and judg-
ment. It has yet to be demonstrated how governmental
control of this crucial process can be exercised con-
sistent with First Amendment guarantees of a free
press as they have evolved to this time.

418 U.S. at 258, 94 S.Ct. at 2839-2840.

But almost from the beginning, the broadcasting press
has been treated differently. Congress created the Fed-
eral Communications Commission and its predecessor, the
Federal Radio Commission, because the available space on
the electromagnetic spectrum was far exceeded by the num-
ber of those who would use it.* It was necessary to ration

78418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).

** National Broadcasting Company v. United States, 319 U.S.
190, 210-214, 63 S.Ct. 997 87 L.Ed. 1344 (1943).

45a

this scarce resource, for ‘‘[w]ithout government control,
the medium would be of little use because of the cacaphony
of competing voices, none of which could be clearly and
predictably heard.’’ *

Scarcity required licensing in order to bring order to
chaos, but the dangers of control in the hands of a relative
few were early recognized. The public interest did not
countenance delegation to a few licensees to pursue their
purely private interests at the expense of listeners and
viewers, and instead the broadcaster was held to have an
obligation to serve and inform the public.”

Under the fairness doctrine the public is not to be con-
fined to hearing only the views approved by those licensees,
but is entitled to be informed of the diversity of opinion in
the land, to have that presented by appropriate spokesmen
for its consideration and judgment.

The salutary intent of the fairness doctrine must be rec-
onciled with the tradition against inhibition of the journal-
ists’ freedom. That tradition, which exerts a powerful
countervailing force, is rooted in the constitutional guaran-
tee of freedom of the press, a guarantee that has vitality
for broadcast journalists, though not in exactly the same
degree as for their brethren of the printed word.” And

25 Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 376,
89 S.Ct. at 1799.

26 Other responses to the dangers of placing control over the
broadcast media into the hands of a relative few include: the obli-
gation of the licensee to operate in the public interest, see 47 U.S.C.
§§ 307(a), 309(a) and 312(a)(2), the chain broadcasting and
multiple ownership rules, see National Broadcasting Co. v. United
States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943) and 47
C.F.R. §§ 73.131, 73.240, and the prime time access rule, 47 C.F.R.
§ 73.658(k) (1973). See also Columbia Broadcasting System v.
Democratic National Committee, 412 U.S. 94, 112 n. 10, 93 S.Ct.
2080, 36 L.Ed.2d 772 (1973).

27 See id. at 117-118, 122, 93 S.Ct. 2080.

46a

the same statute that provides authority for the FCC to
implement the fairness doctrine for its licensees contains
a clear provision (in section 326) disclaiming and prohibit-
ing censorship as part of the legislative scheme. In con-
struing the fairness doctrine, both the Commission and the
courts have proceeded carefully, mindful of the need for
harmonizing these often conflicting considerations.

In Red Lion Broadcasting Compan

y v. FCC, 395 U.S.
367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Supreme
Court approved the Commission’s personal attack and
political editorializing rules,* which are relatively narrow

* Red Lion v. FCC, 395 U.S. at 373-375, 89 S.Ct. at 1798:
‘*Personal attacks; political editorials.

- (a) When, during the presentation of views on a contro-
versal issue of public importance, an attack is made upon the
honesty, character, integrity or like personal qualities of an
identified person or group, the licensee shall, within a rea-
sonable time and in no event later than 1 week after the at-
tack, transmit to the person or group attacked (1) notification
of the date, time and identification of the broadcast: (2) a
script or tape (or an accurate summary if a script or tape is
not available) of the attack; and (3) an offer of a reasonable
opportunity to respond over the licensee’s facilities.

(b) The provisions of paragraph (a) of this section shall
not be applicable (1) to attacks on foreign groups or foreign
public figures ; (2) to personal attacks which are made b
legally qualified candidates, their authorized spokesmen, rl
those associated with them in the campaign, on other such
candidates, their authorized spokesmen, or persons associated
with the candidates in the campaign; and (3) to bona fid
newscasts, bona fide news interviews, and on-the-spot cove .
of a bona fide news event (including commentary or a
contained in the foregoing programs, but the BeoPresgae

paragraph (a) of this section shall ’ “emsae?
of the licensee). shall be applicable to editorials

‘‘Nore: The fairness doctrine is appli i
: T pplicable to situati
coming within [( 3)], above, and, in a specifie factual dtastion.
rp be applicable in the general area of political broadcasts
[(2)], above. See section 315(a) of the Act, 47 U.S.C. § 315

47a

corollaries of the general fairness obligation. Under the
personal attack rules a licensee must afford reply time to
‘san identified person or group’’ whose ‘‘honesty, charac-
ter, integrity, or like personal qualities’ are attacked in
the course of presentation of views on a controversial issue
of public importance. The political editorializing rule im-
poses a reply obligation where the licensee endorses or op-
poses a candidate for public office.

These rules were the target of sharp attack. The essence
of the challenge was that no matter how slight, how narrow,
or how precise, any limitation on the freedom of the licensee
to broadcast what he chooses perforce violates the First
Amendment. Rejecting this contention, a unanimous ”
Supreme Court reminded the broadcaster of the essential
difference between the print and broadcast media: the
physical limitations of the latter restrict the number of
those who would broadcast whereas expression by publica-

(a) ; Public Notice: Applicability of the Fairness Doctrine in
the Handling of Controversial Issues of Public Importance.
99 F.R. 10415. The categories listed in [(3)] are the same
as those specified in section 315(a) of the Act.

‘*(e) Where a licensee, in an editorial, (i) endorses or (ii)
opposes a legally qualified candidate or candidates, the licensee
shall, within 24 hours after the editorial, transmit to respec-
tively (i) the other qualified candidate or candidates for the
same office or (ii) the candidate opposed in the editorial (1)
notification of the date and the time of the editorial; (2) a
script or tape of the editorial; and (3) an offer of a reasonable
opportunity for a candidate to respond over the licensee’s
facilities: Provided, however, That where such editorials are
broadcast within 72 hours prior to the day of the election, the
licensee shall comply with the provisions of this paragraph
sufficiently far in advance of the broadcast to enable the can-
didate or candidates to have a reasonable opportunity to
prepare a response and to present it in a timely fashion.’’ 47
CFR §§ 73.123, 73.300, 73.598, 73.679 (all identical).

2° Justice Douglas did not participate, and said in CBS: ‘‘I did
not participate in that decision and, with all respect, would
not support it.’’ 412 U.S. at 154, 93 S.Ct. at 2112.

48a

tion is, at least in theory, available to all. To posit a First
Amendment restriction on government action taken to en-
hance the variety of opinions available to the viewer is to
protect those fortuitous enough to obtain broadcast licenses
at the expense of those who were not. In now-famous lan-
guage the Court stated:

Because of the scarcity of radio frequencies, the Gov-
ernment is permitted to put restraints on licensees in
favor of others whose views should be expressed on
this unique medium. But the people as a whole retain
their interest in free speech by radio and their collec-
tive right to have the medium function consistently
with the ends and purposes of the First Amendment.
It is the right of the viewers and listeners, not the right
of the broadcasters, which is paramount.”

This has become the guiding principle of the fairness
doctrine: limitations on the freedom of the broadcaster—
even those that would be unacceptable when imposed on
other media—are lawful in order to enhance the public’s
right to be informed.** The Court’s opinion, written by
Justice White, reflects the cireumspection of this principle
of decision. While rejecting as unfounded claims that the
personal attack and political editorializing rules would
induce self-censorship by licensees in order to avoid the
rigors of compliance with their requirements, the Court
cautioned that its judgment might be different ‘‘if experi-
ence with the administration of those doctrines indicates
that they have the net effect of reducing rather than en-
hancing the volume and quality of coverage.” ...’’ And

80 395 U.S. at 390, 89 S.Ct. at 1806.

%1**Only when the interests of the public are found to outweigh
the private journalistic interests of the broadcasters will govern-
ment power be asserted within the framework of the Act.’’ CBS
supra, 412 U.S. at 110, 93 S.Ct. at 2090.

82 395 U.S. at 393, 89 S.Ct. at 1808.

49a

the Court expressly stated that in approving the personal
attack and political editorializing rules, it did not ‘‘ap-
prove every aspect of the fairness doctrine.” ...”’

Four years later, in Columbia Broadcasting System v.
Democratic National Committee,** the Court again dis-
cussed the fairness doctrine. The Commission had held
that licensees could impose a blanket ban on all editorial
advertising. An intermediate court ruling that such a ban,
even if consistent with the fairness doctrine, violated the
First Amendment," was reversed by the Supreme Court,
in an opinion by Chief Justice Burger.

In CBS the Court reaffirmed the principle that scarcity
requires that the broadcast media be treated differently
than other forums of expressien, but observed that this is
not a principle without bounds, that not all regulation can
be justified in the name of scarcity. Overzealous invoca-
tion of rules such as the fairness doctrine could cause an
‘‘erosion of the journalistic discretion of broadcasters in
the coverage of public issues.’’ *

Journalistic discretion, the Court emphasized, is the key-
note to the legislative framework of the Communications
Act."

The limitations of broadcasting both spawned the fair-
ness doctrine and establish that it is dependent primarily
on licensee discretion. Perfect compliance is impossible.
No broadcaster can present all colorations of all available
public issues. 412 U.S. at 111, 93 S.Ct. 2080. Choices
have to be made and, assuming that the area is one of pro-

38 Jd. at 396, 89 S.Ct. at 1809.
%4 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).

85 Business Executives’ Move for Peace v. FCC, 146 U.S.App.
D.C. 181, 450 F.2d 642 (1971).

96412 U.S. at 124, 93 S.Ct. at 2097.
87 Jd. at 110-111, 93 S.Ct. 2080.

50a

tected expression, the choices must be made by those whose
mission it is to inform, not by those who must rule. In the
words of Chief Justice Burger:

For better or worse, editing is what editors are for;
and editing is selection and choice of material. That
editors—newspaper or broadeast—can and do abuse
this power is beyond doubt, but that is not reason to
deny the discretion Congress provided. Caleulated
risks of abuse are taken in order to preserve higher
values. The presence of these risks is nothing new;
the authors of the Bill of Rights accepted the reality
that these risks were evils for which there was no ac-
ceptable remedy other than a spirit of moderation and
a sense of responsibility—and civility—on the part of
those who exercise the guaranteed freedoms of ex-
pression.”

There are no other decisions on the fairness doctrine
from the Supreme Court, but this court has had occasion
to consider the doctrine in several cases and it has endeav-
ored to maintain the balance between broadcaster freedom
and the publie’s right to know. Commercial advertising
cases present different considerations than those before us
and we need not reexamine the doctrine as there applied.”
More related to the present issue is the public service an-
nouncement discussed in Green v. FCC,” where we refused
petitioners’ request to require a licensee to present a point
of view on the Vietnam conflict that had already received

88 7a. at 124-125, 93 S.Ct. at 2097. This same thought appears in
the Tornillo case, 418 U.S. at 258, 94 S.Ct. at 2840 and is obviously
an abiding constitutional consideration.

* Neckritz v. FCC, 163 U.S.App.D.C. 409, 502 F.2d 411 (1974) ;
Friends of the Earth vy. FCC, 146 U.S.App.D.C. 88, 449 F.2d 1164
(1971); Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082
(1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93
(1969).

144 U.S.App.D.C. 353, 447 F.2d 323 (1971).

5la

extensive coverage. In Green, as in the instant case, there
was some initial difficulty in defining the issue allegedly
presented in the offending broadcast. We stated that this
determination, as well as the decision as to the number of
views to be presented and the manner in which they are
portrayed, is one initially for the licensee, who has latitude
to make all pertinent judgments and is not to be overturned
unless he forsakes the standards of reasonableness and
good faith." Reliance on the reasonableness standard,
‘‘which is all that is required under the fairness doc-
trine’’ * preserves licensee discretion and serves the es-
sential purposes of the fairness doctrine ‘‘that the Amer-
ican public must not be left uninformed,’”’ *

41 The Commission has said:

The fairness doctrine deals with the broader question of
affording reasonable opportunity for the presentation of con-
trasting viewpoints on controversial issues of public impor-
tance. Generally speaking, it does not apply with the pre-
cision of the ‘‘equal opportunities’’ requirement. Rather, the
licensee, in applying the fairness doctrine, is called upon to
make reasonable judgments in good faith on the facts of each
situation—as to whether a controversial issue of public im-
portance is involved, as to what viewpoints have been or should
be presented, as to the format and spokesmen to present the
viewpoints, and all the other facets of such programming.
See par. 9, Editorializing Report. In passing on any com-
plaint in this area, the Commission’s role is not to substitute
its judgment for that of the licensee as to any of the above
programming decisions, but rather to determine whether the
licensee can be said to have acted reasonably and in good
faith. There is thus room for considerably more discretion on
the part of the licensee under the fairness doctrine than under
the ‘‘equal opportunities’’ requirement.

In re Applicability of the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance, 40 FCC 598, 599
(1964).

2144 U.S.App.D.C. at 360, 447 F.2d at 330.
#3 Jd. at 359, 447 F.2d at 329 (emphasis in original).

52a

In Democratic National Committee v. FCC,“ we faced
knotty problems in sorting out the fairness obligations
generated by a radio and television address by the Presi-
dent and a reply by the opposition political party. In up-
holding the Commission decision that the licensees had not
abused their discretion, Judge Tamm, writing for the court,
stressed the importance of reliance on licensee judgment:

By its very nature the fairness doctrine is one which
cannot be applied with scientific and mathematical
certainty. There is no formula which if followed will
assure that the requirements of the doctrine have been
met. Procedurally, the doctrine can only succeed when
the licensee exercises that discretion upon which he is
instructed to call upon in dealing with coverage of con-
troversial issues.”

Finding no abuse of discretion, we affirmed.

In Healey v. FCC," petitioner claimed to be within the
ambit of the personal attack rule, which requires the
licensee to afford opportunity to reply to an individual
attacked in the course of a discussion of a controversial
issue of public importance. As in the case now before us,
the critical question was whether the broadcast involved a
controversial issue of public importance. Petitioner, an
American Communist, claimed that her role as a Commu-
nist within her community was such an issue. Judge
Wilkey, the author of the Green opinion, pointed out that
there is a substantial difference between what is news-
worthy, i.e., that which is interesting to the public, and
what is controversial:

Merely because a story is newsworthy does not mean
that it contains a controversial issue of public impor-

**148 U.S.App.D.C. 383, 460 F.2d 891, cert. denied, 409 U.S.
843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972).

‘© Td. at 392, 460 F.2d at 900 (emphasis added).
*° 148 U.S.App.D.C. 409, 460 F.2d 917 (1972).

53a

tance. Our daily papers and television broadcasts
alike are filled with news items which good journal-
istic judgment would classify as newsworthy, but which
the same editors would not characterize as containing
important controversial public issues.”

Converting every newsworthy matter into a controversial
issue of public importance and requiring editors to ‘‘bal-
ance’’ every presentation creates a danger. Again in the
words of Judge Wilkey:

To characterize every dispute of this character as call-
ing for rejoinder under the fairness doctrine would so
inhibit ‘television and radio as to destroy a good part
of their public usefuless. It would make what has
already been criticised as a bland product disseminated
by an uncourageous media even more innocuous.

The principle of deference to licensee judgments, unless
the licensee has simply departed from the underlying as-
sumptions of good faith and reasonable discretion, is an
integral part of the fairness doctrine, and a fixture that
has been reiterated and applied with fidelity by the courts.”
It is the backdrop against which Judge Tamm’s opinion

47 Td. at 414, 460 F.2d at 922.
48 Td. at 415, 460 F.2d at 923.

4? Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C.
305, 473 F.2d 16 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731,
387 L.Ed.2d 149 (1973). Judge Tamm’s opinion restated that
‘*[t]he cornerstone of the doctrine is good faith and licensee dis-
eretion.’’ That opinion sustained the denial of the application
to renew the license only on the ground that the record of the
licensee was ‘‘bleak in the area of good faith... [and] . . . shows
an utter disdain for Commission rulings and ignores its own re-
sponsibilities as a broadcaster and its representations to the Com-
mission.’’ 153 U.S8.App.D.C. at 333, 335-336, 473 F.2d at 44, 46-47
(1972).

54a

for the court in the Democratic National Committee case
takes note, that

in opinion after opinion, the Commission and the
courts have stressed the wide degree of discretion
available under the fairness doctrine... .™°

The question is whether NBC has been shown to have ex-
ceeded its ‘‘wide degree of discretion’’ in its ‘‘Pensions’’
documentary.

IV. Apstrention From Prevtimimnary Issue—WHeETHER F'arr-
ness Doctrine SHovutp Be Reservep ror License Re-
NEWALS

A preliminary issue has been presented to us by amicus
curiae Henry Geller, Esquire, formerly general counsel of
the Commission, and a serious student of the fairness doc-
trine.' Mr. Geller’s view is that under the law the FCC
could not properly issue the ad hoe fairness ruling on this
program, but was limited to consideration of the matter
only in connection with NBC’s application for renewal of
license, and then only to determine if some flagrant pattern
of violation of the fairness doctrine is indicated by NBC’s
overall operation, with a renewal standard, comparable to
that voiced in New York Times v. Sullivan, 376 U.S. 254,
84 S.Ct. 110, 11 L.Ed.2d 686 (1964), requiring a showing
of ‘‘malice’’—either bad faith, or ‘‘reckless disregard’’ of
fairness obligations.

Initially, it appears, it was the FCC’s procedure to refer
complaints to the station as received, obtain its response,
and then consider the matter definitively at renewal in con-

5° 148 U.S.App.D.C., at 395, 460 F.2d at 903.

5! See II. Geller, the Fairness Doctrine in Broadcasting: Prob-
lem and Suggested Courses of Action (The Rand Corporation, R-
1412-FF, Dee. 1973).

55a

nection with the overall showing of the station."*® This
practice was being followed in 1959, when the Communica-
tions Act was amended to codify the standard of fairness.”
In 1962, the Commission changed its procedure to resolve
all fairness matters as they arose and, if the station were
found to have violated the doctrine, to direct it to advise
the Commission within 20 days of the steps taken ‘‘to as-
sure compliance with the fairness doctrine.’’ ™*

Mr. Geller puts it that the resulting series of ad hoe fair-
ness rulings ‘‘have led the Commission ever deeper into
the journalistic process, and have raised most serious prob-
lems.’’®> The effect, particularly on the small broadcaster,

52 See Testimony of Mr. Joseph Nelson, Chief, FCC Renewal and
Transfer Division, Hearings before the Senate Freedom of Com-
munications Subcommittee, March 27, 1961, 87th Cong., 1st Sess.,
Report 994, Pt. 5, p. 21; see e.g., Dominican Republic Information
Center, 40 FCC 457, 457-588 (1957).

53 See Section 315(a), 47 U.S.C. §315(a); Red Lion Broadcast-
ing Co. v. FCC, supra, 395 U.S. at pp. 380-385, 89 S.Ct. 1794.

54 See Tri-State Broadcasting Co., 40 FCC 508, 509 (1962).
This change apparently occurred in connection with personal at-
tack cases, and was extended without discussion to all fairness cascs.
The only FCC treatment is in Honorable Oren Harris, 40 FCC 582
(1963). Chairman Harris of the House Interstate and Foreign
Commerce Committee criticized this new approach, and urged
that fairness ‘‘. . . be applied periodically (i. e., at the time of
renewal) and upon an overall basis.’’ Jd. at p. 583. In its re-
sponse, the Commission gave three reasons for its policy of resolv-
ing fairness questions at time of complaint rather than awaiting
renewal: (1) It is not fair to the licensee to wait; he should have
a chance to contest the fairness ruling by appealing to the courts;
(2) awaiting renewal is unfair to the public, which then does not
have the opportunity to hear contrasting views, such as in pro-
grams dealing with ballot issues; and (3) similarly, it would be un-
fair to candidates in political campaigns.

55 Amicus Brief at 3-5. These problems, which are under FCC
consideration, may be grouped as follows:

(a) Defining balance or reasonable opportunity to afford
contrasting viewpoints on an issue.

(b) The stopwatch problem. Apparently, the FCC has on
occasion literally used a stop-watch to time the presentations

56a

has been to inhibit the promotion of robust, wide-open de-
bate. Thus, in a case where the FCC found that a licensee
had afforded reasonable opportunity for opposing view-
points,° the FCC process was long (decision 21 months
after broadcast) and arduous. The licensee’s burden in-
cluded not only substantial legal (about $25,000) and other
expenses (e.g., travel), but also required top-level station
personnel to devote substantial time and attention, with
attendant dislocation of regular operational functions. In
sum, Mr. Geller says that a substantial inhibiting effect
derives not merely from any rulings adverse to the broad-
caster, but the strain, time and resources involved in cop-

ing with particular challenges even if they are unsuccess-
ful.

Amicus cites expressions in Columbia Broadcasting Sys-
tem v. Democratic National Committee, supra, rejecting a

made on the various sides on an issue. See Concurring State-
ment of Chairman Burch in Complaint of the Wilderness So-
ciety against NBC (ESSO), 31 FCC 2d 729, 735-739 (1971).
See also Sunbeam TV Corp., 27 FCC 2d 350, 351 (1971).

Even an apparently mechanical stop-watch approach involves
sensitive judgments in determining whether particular segments of
a program tilt for or against, or are neutral on a particular issue.

(ce) The ‘‘stop-time’’ program. During the period of FCC
consideration, the licensee may offer additional broadcasts
(perhaps, to cover new developments). And these may affect
the FCC’s judgment on whether reasonable opportunity has
been presented. Complaint of Wilderness Society against
NBC (ESSO), supra.

5° Sherwyn M. Heckt, 40 FCC 2d 1150 (1973). Licensee KREM-
TV editorialized in favor of an Expo 74 for Spokane, and a sup-
porting bond issue. There was a disparity im the time offered for
anti-bond viewpoints. The station rejected an anti-bond spokes-
man, and was held to have a reasonable explanation (the spokes-
man did not appear to represent groups for which he claimed to
speak). The station showed it had actively sought to obtain the
am of leading spokesmen for the opposition, and did present

em.

57a

contention (right of access for editorial advertisements)
that would involve the government too much in the ‘‘day-
to-day operations of broadcasters’ conduct,’’ and stating
the fairness doctrine, in terms of the legislative scheme and
purpose, in these terms, 412 U.S. at 127, 93 S.Ct. at 2098:

Under the Fairness Doctrine the Commission’s re-
sponsibility is to judge whether a licensee’s overall
performance indicates a sustained good faith effort to
meet the public interest in being fully and fairly in-
formed. The Commission’s responsibilities under a
right-of-access system would tend to draw it into a
continuing case-by-case determination of who should
be heard and when.

We have stated the amicus position at some length be-
cause we do not wish our opinion to be misunderstood as
inadvertent on the point. The position is a serious one,
and it deserves serious consideration. * The fact that Red
Lion reviewed a particular ruling is no bar, for this point
was not raised. Indeed, even as to points that were raised,
the Court was careful to say that it would be alert to re-
examine its assumptions upon an appropriate showing.

We do not think, however, that the present case is an
appropriate vehicle for determination of the contention
presented by amicus. It is resisted by petitioners, who
seek reversal but not on this basis, which might enhance
their risk. Moreover, it was not expressly considered by
the Commission. While amicus states that a copy of the
underlying study, see footnote 51, supra, was distributed
to each Commissioner prior to the Commission’s consid-
eration of this case, that is not the same thing as putting

57 The specter of renewal jeopardy for failure to comply fully
with the fairness doctrine can have a serious inhibiting effect, as
tic Commission recognized in saying that it would consider refus-
ing renewal only when a most substantial and fundamental issue is
presented. See Hunger in America, 20 FCC 2d 143, 150 (1969).

58a

the matter in issue in the proceeding. The proposal is one
that merits consideration by the Commission before it can
be discussed by this court as a legal imperative.*® We ab-
tain, then, from any determination in this case concerning
the merits of the proposition put by amicus curiae.

V. APPLICATION OF THE F'arrNEss DocTRINE TO
News DocuMENTARIES

Our assumption of the propriety of the FCC’s current
practice that it may make rulings whether particular pro-
grams violate the fairness doctrine does not lessen our
concern as to those rulings; it rather enhances the need
for careful scrutiny, particularly where, as here, a ruling is
challenged on the ground that it displaces the judgment
entrusted to the broadcast journalist.

A. The Function of the FCC

The principal controversial issue the Commission identi-
fied for the ‘‘Pension’’ program is ‘‘the overall perform-
ance of the private pension plan system.’’ In NBC’s sub-
mission, the focus of the program was the existence of
abuses, of ‘‘some problems in some pension plans.’’ While
one understands NBC’s point as made, it might be refined
as a statement that NBC was engaged in a study in abuses
and did not separately examine how pervasive those abuses
were. On what basis did the Commission reject NBC’s
position, and accept AIM’s view that the point of the pro-
gram was the performance of the common run of pension
plans?

The staff ruling of May 2, 1973, said this (p. 11):

The Pensions program thus did in fact present views
which were broadly critical of the performance of the

58 Amicus himself recognizes the desirability of particular rul-
ings for the personal attack and political editorializing rules. See
Amicus Brief at 14 n. 28: ‘‘[T]hese are specific rule situations
which do not involve any ‘stop-time’ or ‘stop-watch’ considerations.
There is also a need for prompt rulings as to political broadcasts.”’

59a

entire private pension system and explicitly advocated
and supported proposals to regulate the operation of
all pension plans. Your judgments to the contrary,
therefore, cannot be accepted as reasonable.

One is struck by the palpable flaw in the staff’s reason-
ing. The staff actually put it that because the staff found
as a fact that the program was broadly critical of the en-
tire private pension plan system, NBC’s contrary judg-
ment ‘‘therefore’’ cannot be accepted as reasonable. The
flaw looms the larger, in that it appears in the ruling of
the staff of an agency operating under the Rule of Admin-
istrative Law. Under that Rule, agencies daily proclaim
that their findings of fact must be upheld if reasonable and
if supported by substantial evidence, even though there is
equal and even preponderant evidence to the contrary,
and even though the courts would have found the facts the
other way if they had approached the issue independently.

The Commission’s opinion of December 3, 1973, corrected
the staff’s error of logic, but it made a mistake of law. It
stated (see para. 17, JA 210):

The specific question properly before us here is there-
fore not whether NBC may reasonably say that the
broad, overall ‘‘subject’’ of the ‘‘Pensions’’ program
was ‘‘some problems in some pension plans,’’ but
rather whether the program did in fact present view-
points on one side of the issue of the overall perform-
ance and proposed regulation of the private pension
system. [emphasis added. ]

Thus the Commission ruled that even though NBC was
reasonable in saying that the subject of ‘‘Pensions’’ pro-
gram was ‘‘some problems in some pension plans,’’ in de-
termining that this was the essential subject of the pro-
gram, its dominant force and thrust, nevertheless NBC had
violated its obligation as a licensee, because the Commis-
sion reached a different conclusion, that the program had

60a

the effect ‘‘in fact’’ of presenting only one side of a dif-
ferent subject.

The Commission’s error of law is that it failed ade-
quately to apply the message of applicable decisions that
the editorial judgments of the licensee must not be dis-
turbed if reasonable and in good faith. The licensee has
both initial responsibility and primary responsibility. It
has wide discretion and latitude that must be respected
even though, under the same facts, the agency would reach
a contrary conclusion.

The pertinent principle that the Commission will not
disturb the editorial judgment of the licensee, if reasonable
and in good faith, is applicable broadly in fairness doctrine
matters. It has distinctive force and vitality when the
crucial question is the kind raised in this case, 1.e., in de-
fining the seope of the issue raised by the program, for
this inquiry typically turns on the kind of communications
judgments that are the stuff of the daily decisions of the
licensee. There may be mistakes in the licensee’s deter-
mination. But the review power of the agency is limited
to licensee determinations that are not only different from
those the agency would have reached in the first instance
but are unreasonable.™

588 Subsequent to the preparation of this opinion, a recent notice
setting forth the FCC’s present views on the fairness doctrine came
to our attention. Fairness Doctrine and Public Interest Stand-
ards: Fairness Report Regarding Handling of Public Issues, 39
Fed.Reg. 26372 (1974). That order is presently being challenged
on appeal in National Citizens Committee v. FCC, No. 74-1700
(D.C.Cir., filed July 3, 1974). In paragraphs 32-35, the Commis-
sion considers the problems in ‘‘the determination of the specific
issue or issues raised by a particular program.’’ The Commis-
sion states: ‘‘This would seem to be a simple task, but in many
eases it is not. Frequently, resolution of this problem can be of
decisional importance. ... [A] broadcast may avoid explicit
mention of the ultimate matter in controversy and focus instead on
assertions or arguments which support one side or the other on that
ultimate issue. [The Commission offers a hypothetical instance of

6la

In Columbia Broadcasting System v. Democratic Na-
tional Committee, supra, the Court stressed the wide lati-
tude entrusted to the broadcaster. See 412 U.S. at 110-111,
93 S.Ct. at 2090-2091 :

Congress intended to permit private broadcasting to
develop with the widest journalistic freedom consist-
ent with its public obligations.

The broadcaster, therefore, is allowed significant jour-
nalistic discretion in deciding how best to fulfill the
Fairness Doctrine obligations, although that discre-

i

a heated community debate over a proposed school bond, with the
broadcast referring to conditions stressed by advocates of the bond
although the spokesman does not explicitly mention or advocate
passage of the bond.] [W]e would expect a licensee to exercise his
good faith judgement as to whether the spokesman had in an ob-
vious and meaningful fashion presented a position on the ultimate
controversial issue [approval of a bond]. ... If a licensee’s de-
termination is reasonable and arrived at in good faith, however,
we will not disturb it.’’ Jd. at 26376.

We find this exposition congruent with—and indeed supportive
of—the approach taken in this opinion. The Commission also
states, in a preceding section, that on the question whether an issue
is ‘‘controversial’’ and of ‘‘ public importance’’ it has not been able
to develop detailed criteria, and continues (par. 29): ‘‘For this
very practical reason, and for the reason that our role must and
should be limited to one of review, we will continue to rely heavily
on the reasonable, good faith judgments of our licensees in this
area.’’ Jd. at 26376.

While the Supreme Court’s recent opinions in non-broadcast
areas do not undercut a role for the Commission in the fairness
doctrine, the underlying principles underscore the appropriateness
of confining that role. In addition to Tornillo, quoted above, see
e. g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-346, 94 S.Ct.
2997, 3010, 41 L.Ed.2d 789 (1974), referring to the ‘‘difficulty of
forcing state and federal judges to decide on an ad hoc basis which
publications address issues of ‘general or public interest’ and which
do not.’”’

62a

tion is bounded by rules designed to assure that the
public interest in fairness is furthered.

While the government agency has the responsibility of
deciding whether the broadcaster has exceeded the bounds
of discretion, the Court makes clear that any approach
whereby a government agency would undertake to govern
‘‘day-to-day editorial decisions of broadcast licensees’’
endangers the loss of journalistic discretion and First
Amendment values. (412 U.S. at 120-121, 93 S.Ct. at 2095)

What is perhaps most striking and apt for present pur-
poses is the figure used by Chief Justice Burger wherein
the licensee is identified as a ‘‘free agent’’ who has ‘‘tt-
tial and primary responsibility for fairness, balance, and
objectivity,’’ with the Commission serving as an ‘‘over-
seer’’ and ‘‘ultimate arbiter and guardian of the public
interest.’’ ** [Emphasis added.]

Our own decisions ® amplify these basic propositions.
Judge Tamm’s opinion for the court in Democratic Na-

5® See 412 U.S. at 117, 93 8.Ct. at 2094:

The regulatory scheme evolved soley, but very early the licen-
see’s role developed in terms of a ‘‘publie trustee’’ charged with
the duty of fairly

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1285%3A2. Public record. Not legal advice.