Amicus Curiae Brief — Reno v. American Civil Liberties Union

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IN THE EFR 20 gat

Supreme Court of the Hniteh States _

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OCTOBER TERM, 1996

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JANET RENO, ATTORNEY GENERAL

OF THE UNITED STATES, et al.,

Appellants,

AMERICAN CIVIL LIBERTIES UNION, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF BROADCASTERS; ABC, INC.;

CBS INC.; AND NATIONAL BROADCASTING

COMPANY, INC. IN SUPPORT OF APPELLEES

FLOYD ABRAMS

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amici Curiae

Of Counsel:

GAIL JOHNSTON

CAHILL GORDON & REINDEL

(a partnership including a

professional corporation)

February 20, 1997

(Additional Counsel Listed on Inside Cover)

“TBEST AVAILABLE COPY

Henry L. Baumann

Steven A. Bookshester

Jack N. Goodman

National Association

of Broadcasters

1771 N. St., N.W.

Washington, D.C. 20036

Counsel for National

Association of Broadcasters

Alan N. Braverman

John Zucker

ABC, Inc.

77 West 66th Street

New York, New York 10023

Counsel for ABC, Inc.

Howard Jaeckel

Susanna M. Lowy

CBS Inc.

51 West 52nd Street

New York, New York 10019

Counsel for CBS Inc.

Jon Fine

Lynn Oberlander

National Broadcasting

Company, Inc.

30 Rockefeller Plaza

New York, New York 10112

Counsel for National

Broadcasting Co., Inc.

SBEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........ccccccccccecccess

PRELIMINARY STATEMENT ......................5.

INTEREST OF AMICI CURIAE...................045.

SUMMARY OF ARGUMENT ...................000055

ARGUMENT

“SPECTRUM SCARCITY” CAN NO LONGER

SERVE AS A BASIS FOR AFFORDING

DIMINISHED FIRST AMENDMENT

PROTECTION TO BROADCASTERS. ...........

ib ckbeecescaccscoscecececcccsccccccccce:

ei iereieneeasbeesesecscoccesecocescceces

TABLE OF AUTHORITIES

Cases PAGE

Action for Children’s Television v. FCC, 58 F.3d 654

(D.C. Cir. 1995), cert. denied, 116 S. Ct. 701

GPE cokcacctocedsdenessedecnsbaskoussanetabannids 9n, 11

American Civil Liberties Union v. Reno, 929 F. Supp.

824 (E.D. Pa.), prob. juris. noted, 117 S. Ct. 554

GEE cactedavesecectstcenatnecsiéabbindeatusetobia 12

Arkansas AFL-CIO v. FCC, 11 F.3d 1430 (8th Cir.

SNE . nnccccunedéasetnebentnnatniaeasetn 10

Columbia Broadcasting System, Inc. v. Democratic

Nat'l Comm., 412 U.S. 94 (1973)................. 5

Denver Area Educ. Telecommunications Consortium,

Inc. v. FCC, 116 S. Ct. 2374 (1996) ........... 4, 5, 13n

FCC v. League of Women Voters, 468 U.S. 364

GCE A cénsecccdsch eidacccidadecssbanticdoent 6,7, 10, 11

FCC v. Pacifica Foundation, 438 U.S. 726

CUED ccdecenccaccciscnessdbogdsusssibadabeiane 4, 12-13n

Meredith Corp. v. FCC, 809 F.2d 863 (1987).......... 7

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

CEREIED ccancctoscccecsodesenosedensseeinenesaegsenss? 4

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

Ee GED Snkcawsdeccesceccdcneistanesoentieensso< 4

National Broadcasting Co. v. United States, 319 U.S.

FREED Kdchncceccuceedetudeucebnbasdatnbeneeade 4

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)........ 13n

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

CRBESD cncccccccccceccesecesencscngsscoseescocesess passim

PAGE

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

i a Nae 4

Telecommunications Research and Action Ctr. v. FCC,

801 F.2d 501 (D.C. Cir.), reh’g denied, 806 F.2d

1115 (1986), cert. denied, 482 U.S. 919 (1987) .8, 8-9n

Time Warner Entertainment Co. v. FCC, __ F.3d. __,

1997 WL 47179 (D.C. Cir 1997)................. 11-12n

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622

i thinnsidingecenisiuadambeneedeescoioeseess 4,5

Constitutional Provisions and Statutes

es is MEL, © onncnnnccocepnscacensoccosqcesoses passim

Communications Decency Act of 1996, Pub. L. No.

i oe ie eaeisbenes l

Rules

Ss A MR, Bis PU cccctdccnscesedccccetccscocces |

Administrative Decisions

Arkansas AFL-CIO v. Television Station KARK-TV, 7

aoa ee atead geuneeedoceees 10

In re Complaint of Syracuse Peace Council, 99

F.C.C.2d 1389 (1984), recon. denied, 59 Rad.

Reg. 2d (P&F) 179 (1985) ............eeeeeeeeeees 7

In re Complaint of Syracuse Peace Council, 2 F.C.C.R.

5043 (1987), aff'd, Syracuse Peace Council v.

FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied,

Be is SE EE naccncencsnnsccocneveccesces passim

PAGE

Miscellaneous

Broadcasting & Cable Yearbook 1996...........++++:: 8n

Archibald Cox, The Supreme Court, 1979 Term;

Forward: Freedom of Expression in the Burger

Court, 94 Harv. L. Rev. 1 (1980) .............-.+. 13n

Inquiry into Section 73.190 of the Commission's Rules

and Regulations Concerning the General Fairness

Doctrine Obligations of Broadcast Licensees, 102

B.CC.346 243 CIGESD) . cccccccccccccccsccccccsccsss 9n

Lucas A. Powe, American Broadcasting and the First

Amendment (1987) ..........-6000cceceeeceeeeeeees 13n

4 Ronald D. Rotunda & John E. Nowak, A Treatise

on Constitutional Law (2d ed. 1992) ............. 13n

Laurence H. Tribe, American Constitutional Law

(24 @6. 19BB)....ccccccccccccccccccccccccccccessess 13n

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-511

JANET RENO, ATTORNEY GENERAL

OF THE UNITED STATES, et al..

Appellants,

—Yy.—

AMERICAN CIVIL LIBERTIES UNION, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF BROADCASTERS; ABC, INC.;

CBS INC.; AND NATIONAL BROADCASTING

COMPANY, INC. IN SUPPORT OF APPELLEES

PRELIMINARY STATEMENT

This brief is respectfully submitted on behalf of the

National Association of Broadcasters; ABC, Inc.; CBS Inc.;

and National Broadcasting Company, as amici curiae in sup-

port of affirmance of the preliminary injunction entered

against enforcement of the criminal provisions of the Com-

munications Decency Act of 1996, Pub. L. No. 104-104, 100

Stat. 133. Pursuant to Rule 37(3)(a) of the rules of this Court,

amici have obtained and filed the written consents of the par-

ties to the filing of this brief.

The purpose of this brief is to address a single issue that

may arise in the Court’s analysis of the application of the

First Amendment to the Internet. It is the level of First

Amendment protection afforded to broadcasters—a topic fre-

quently addressed by this Court in the past, but never dealt

with in light of the most recent examination by and ruling of

the Federal Communications Commission that bears directly

on the issue. This brief deals with (and annexes) that ruling—

the Syracuse Peace Council case'—and urges the Court that

when it next addresses the issue (whether or not in this case),

the spectrum scarcity rationale that has led to reduced First

Amendment protection for television and radio broadcasters

should be abandoned.

INTEREST OF AMICI CURIAE

The National Association of Broadcasters (“NAB”), a non-

profit incorporated association, is the leading trade associa-

tion of television and radio stations and networks in the

United States, and serves and represents the American broad-

casting industry. ABC, Inc. (“ABC”); CBS Inc. (“CBS”); and

National Broadcasting Company, Inc. (“NBC”) each operate,

directly or through their subsidiaries, national broadcast net-

works and are engaged, inter alia, in producing news, sports

and entertainment programming and disseminating that pro-

gramming to the public through their owned and affiliated

broadcast stations throughout the country as well as through

sites on the Internet. As a result, amici have a clear stake in

any decision or statement by this Court that might affect the

First Amendment status of broadcasters. In particular, NAB,

ABC, CBS, and NBC are concerned that in the course of its

. In re Complaint of Syracuse Peace Council, 2 F.C.C.R. 5043

(1987), aff'd, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir.

1989), cert. denied, 493 U.S. 1019 (1990).

opinion in this case, the Court may repeat prior statements or

legal conclusions about the supposed lesser level of First

Amendment protection afforded to broadcasters without tak-

ing the Commission's most recent—and definitive—ruling

into account which would require reexamination of those con-

clusions. For this reason and to support broad First Amend-

ment protection for all speech, including speech via the

Internet, NAB, ABC, CBS, and NBC submit this brief.

SUMMARY OF ARGUMENT

Almost thirty years ago, the Court held that broadcasters

should receive a lesser degree of First Amendment protection

than other speakers, based in large part on the then-existing

technology. Since that time, the Court has acknowledged its

willingness to reconsider its decision if it received a “signal”

from Congress or the Federal Communications Commission

(“FCC”) that technological advances required revision of the

system of broadcast regulation. In its ruling abandoning the

Fairness Doctrine, the FCC sent that signal in the clearest and

most unambiguous of terms. In the intervening decade, a tech-

nological explosion (of which the development of the Inter-

net is but one part) has occurred which has weakened still

further any notion that “spectrum scarcity” could justify

diminished First Amendment protection for broadcasters.

Now, as the Court embarks on its analysis of First Amend-

ment protection on the Internet, amici urge the Court to

refrain from relying on any generalized notion that broad-

casters should receive a lesser form of First Amendment pro-

tection and to await a case in which the issue of the continued

viability of the spectrum scarcity rationale is squarely pre-

sented before passing on that issue.

ARGUMENT

“SPECTRUM SCARCITY” CAN NO LONGER SERVE

AS A BASIS FOR AFFORDING DIMINISHED FIRST

AMENDMENT PROTECTION TO BROADCASTERS

This Court has often observed that different media receive

different levels of First Amendment protection. Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) (“Each

medium of expression . . . must be assessed for First Amend-

ment purposes by standards suited to it, for each may present

its own problems.”); FCC v. Pacifica Foundation, 438 U.S.

726, 748 (1978) (“We have long recognized that each medium

of expression presents special First Amendment problems.”);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501

(1981) (“Each method of communicating ideas is ‘a law unto

itself’ and that law must reflect the ‘differing natures, values,

abuses and dangers’ of each method.”).

On the First Amendment continuum, courts have accorded

the highest level of protection to newspapers and other print

media. Miami Herald Publishing Co. v. Tornillo, 418 U.S.

241 (1974). Broadcasters have received a lower level of pro-

tection, with cable television falling somewhere in the mid-

dle. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,

637 (1994) (“[O]Jur cases have permitted more intrusive reg-

ulation of broadcast speakers than of speakers in other

media.”); Denver Area Educ. Telecommunications Consor-

tium, Inc. v. FCC, 116 S. Ct. 2374, 2401 (1996) (Souter, J.,

concurring) (“[W]e have found cable television different from

broadcast with respect to the factors justifying intrusive

access requirements. . . .”).

The lower level of protection for broadcasters has its roots

in the regulation of radio broadcasters in the 1920s and this

Court’s 1943 decision in National Broadcasting Co. v. United

States, which cited the limited radio broadcast facilities avail-

able at the time as a justification for content-based regulation

le he ly ORI MA A eT gt A MH

of speech. 319 U.S. 190, 216-17 (1943). In 1969, the Court

revisited the issue of broadcast scarcity in Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367 (1969), and upheld the so-

called “Fairness Doctrine,” grounding its decision on the

limited number of outlets for communication available in “the

present state of commercially acceptable technology.” /d. at

388. However, even as the Court upheld the Fairness Doc-

trine, it indicated its willingness to reconsider the decision at

a later date. Jd. at 393. This openness to reexamine its ruling

in light of changed technological developments is consistent

with the Court's later observation that

“(t]he problems of regulation are rendered more difficult

because the broadcast industry is dynamic in terms of

technological change; solutions adequate a decade ago

are not necessarily so now, and those acceptable today

may well be outmoded 10 years hence.” Columbia

Broadcasting System, Inc. v. Democratic Nat'l Comm.,

412 U.S. 94, 102 (1973).

A similar view was expressed recently by Justice Souter in his

cautionary admonition in Denver Area Educ. Telecommunica-

tions Consortium, supra, that

“because we know that changes in. . . regulated tech-

nologies will enormously alter the structure of regulation

itself, we should be shy about saying the final word

today about what will be accepted as reasonable tomor-

row.” 116 S. Ct. at 2402 (Souter, J., concurring).

In the nearly thirty years since Red Lion, the Court has con-

tinued to restate its holding, while often noting the existence

of an extensive body of criticism of the scarcity rationale. In

Turner Proadcasting, supra, the Court signaled its own

unease with the scarcity rationale, stating that the “rationale

for applying a less rigorous standard of First Amendment

scrutiny to broadcast regulation, whatever its validity in the

cases elaborating it, does not apply in the context of cable

regulation.” 512 U.S. at 637 (emphasis added). The Court also

recognized that “courts and commentators have criticized the

scarcity rationale since its inception,” id. at 638, and cited to

FCC v. League of Women Voters, 468 U.S. 364 (1984). There,

the Court observed that

“[t}he prevailing rationale for broadcast regulation on

spectrum scarcity has come under increasing criticism in

recent years. Critics, including the incumbent Chairman

of the FCC, charge that with the advent of cable and

satellite television technology, communities now have

access to such a wide variety of stations that the scarcity

doctrine is obsolete.” Jd. at 376 n.11.

It then stated:

“We are not prepared. . . to reconsider our longstand-

ing approach without some signal from Congress or the

FCC that technological developments have advanced so

far that some revision of the system of broadcast regu-

lation may be required.” /d.

Three years later, the Federal Communications Commission

sent that signal. Stating, inter alia, that “the scarcity rationale

. . no longer justifies a different standard of First Amend-

ment review for the electronic press,” the Commission aban-

doned the Fairness Doctrine. Jn re Complaint of Syracuse

Peace Council, supra, 2 F.C.C.R. at 5053; App. 61a. In its

ruling, the Commission stated:

“We . . . believe, as the Supreme Court indicated in

FCC v. League of Women Voters of California, that the

dramatic transformation in the telecommunications mar-

ketplace provides a basis for the Court to reconsider its

application of diminished First Amendment protection to

the electronic media.” Jd. at 5058; App. 89a.

The Syracuse Peace Council ruling was the culmination of

years of proceedings over a Fairness Doctrine complaint

lodged against a television station in Syracuse, New York.

The dispute began in 1982 when station WVTH ran a series of

advertisements supporting the construction of the Nine Mile

II nuclear power plant. Syracuse Peace Council complained to

the FCC that the licensee of the station, Meredith Corpora-

tion, had failed to provide viewers with conflicting perspec-

tives on the power plant and had thereby violated the Fairness

Doctrine. The FCC initially agreed with the Syracuse Peace

Council, 99 F.C.C.2d 1389 (1984), and later refused to

address Meredith’s constitutional defenses on its motion for

reconsideration. 59 Rad. Reg. 2d (P&F) 179 (1985). On

appeal, the District Court reversed and remanded, instructing

the Commission to consider the station’s consijiutional

defenses. Meredith Corp. v. FCC, 809 F.2d 863 (1987).

On remand, the Commission exhaustively reviewed the

legal and factual predicates underlying both the Fairness Doc-

trine and the lower level of First Amendment protection

accorded broadcasters. Because this issue has never been

fully briefed to the Court and because the Commission’s rul-

ing was a direct response to this Court’s invitation in League

of Women Voters, we attach the Commission’s entire ruling as

an Appendix to this brief.

Certain passages of the ruling warrant the Court’s particular

attention. According to the Commission:

“[T]he extraordinary technological advances that have

been made in the electronic media since the 1969 Red

Lion decision, together with a consideration of funda-

mental First Amendment principles, provide an ample

basis for the Supreme Court to reconsider the premise or

approach of its decision in Red Lion.” 2 F.C.C.R. at

5048; App. 38a.

Writing in 1987, the Commission noted that the number of tele-

vision stations had increased fifty-four percent since the Red

Lion decision and that the number of radio stations had

increased fifty-seven percent during that time. /d. at 5051; App.

54a. Furthermore,

“[nJot only has the number of television and radio sta-

tions increased the public’s access to a multiplicity of

media outlets since 1969, but the advent and increased

availability of such other technologies as cable and satel-

lite television services have dramatically enhanced that

access.”* Jd.; App. 54a.

The Commission rejected the scarcity rationale in its

entirety, concluding that “[w]Je do not believe that any

scarcity rationale justifies differential First Amendment treat-

ment of the print and broadcast media.” Jd. at 5054.; App.

67a. Citing Judge Bork’s trenchant opinion in Telecommuni-

cations Research and Action Ctr. v. FCC, 801 F.2d 501 (D.C.

Cir.), reh’g denied, 806 F.2d 1115 (1986), cert. denied, 482

U.S. 919 (1987), in which he criticized the scarcity rationale,’

the Commission noted

“that the limits on the number of persons who can use

frequencies at any given time is not absolute, but is, in

2 Since the time of Syracuse Peace Council, the number of media

outlets has continued to increase. For example, from January 1988 to Jan-

uary 1996, the number of television stations on the air has increased from

1342 to 1544, and the number of radio stations on the air has increased

from 10,244 to 12,001. See Broadcasting & Cable Yearbook 1996 at B-

671, C-244. Additionally, the revolution in computer-based communi-

cations in which “[a}]s many as 40 million people in the world use the

Internet today, and [which] is expected to grow to 200 million by 1999”

has drastically increased the number of outlets for both speakers and lis-

teners. Brief of United States at 28.

3 According to Judge Bork:

“[T)he line drawn between the print media and the broadcast

media, resting as it d~-s on the physical scarcity of the latter, is a

distinction without a. .erence. Employing the scarcity concept as

an analytic[al] tool. . . inevitably leads to strained reasoning and

artificial results.

“It is certainly true that broadcast frequencies are scarce but it

is unclear why that fact justifies content regulation of broadcasting

in a way that would be intolerable if applied to the editorial process

of the print media. All economic goods are scarce, not least the

newsprint, ink, delivery trucks, computers, and other resources that

go into the production and dissemination of print journalism. Not

everyone who wishes to publish a newspaper, or even a pamphlet,

part, economic: greater expenditures on equipment

and/or advances in technology could make it possible to

utilize the spectrum more efficiently in order to permit a

greater number of licensees. So the number of outlets in

a market is potentially expandable, like the quantities of

most other resources.” Jd. at 5045-55; App. 69a.

Summing up its position, the Commission stated: “[W]Je sim-

ply believe that, in analyzing the appropriate First Amendment

standard to be applied to the electronic press, the concept of

scarcity—be it spectrum or numerical—is irrelevant.” /d. at

5055; App. at 73a-74a. Accordingly,

“we believe that an evaluation of First Amendment stan-

dards should not focus on the physical differences

between the electronic press and the printed press, but on

the functional similarities between these two media and

upon the underlying values and goals of the First

Amendment. We believe that the function of the elec-

tronic press in a free society is identical to that of the

printed press and that, therefore, the constitutional anal-

ysis of government control of content should be no dif-

ferent.” Jd. at 5055; App. 74a.

The ultimate conclusion asserted in the Commission’s Syra-

cuse Peace Council ruling was unambiguous: “We believe

that the 1985 Fairness Report,‘ as reaffirmed and further

elaborated on in today’s action, provides the Supreme Court

may do so. Since scarcity is a universal fact, it can hardly explain

regulation in one context and not another.” 801 F.2d at 508.

See also Action for Children’s Television v. FCC, 58 F.3d 654, 675 (D.C.

Cir. 1995) (Edwards, C.J., dissenting), cert. denied, 116 S. Ct. 701 (1996)

(“In response to the economic scarcity argument—that there are more

would-be broadcasters than spectrum frequencies available—economists

argue that all resources are scarce in the sense that people often would

like to use more than exists.”).

. Inquiry into Section 73.190 of the Commission's Rules and Reg-

ulations Concerning the General Fairness Doctrine Obligations of

Broadcast Licensees, 102 F.C.C.2d 143 (1985).

“

with the signal referred to in League of Women Voters.” Id. at

5053; App. 65a. The Commission further stated that its ruling

provided the Court

“the basis on which to reconsider its application of con-

stitutional principles that were developed for a telecom-

munications market that is markedly different from

today’s market. We further believe that the scarcity ratio-

nale developed in the Red Lion decision and successive

cases no longer justifies a different standard of First

Amendment review for the electronic press. Therefore,

in response to the question raised by the Supreme Court

in League of Women Voters, we believe that the standard

applied in Red Lion should be reconsidered and that the

constitutional principles applicable to the printed press

should be equally applicable to the electronic press.” /d.;

App. 61la-62a.

In the decade since the Commission rejected the continuing

viability of spectrum scarcity as a rationale for reduced First

Amendment protection and consequently abandoned the Fair-

ness Doctrine, that position has been reaffirmed by the Com-

mission, Arkansas AFL-CIO v. Television Station KARK-TV,

7 F.C.C.R. 541, 542 (1992), and acknowledged by courts of

appeal. For example, the Eighth Circuit noted that “In Syra-

cuse Peace Council, the D.C. Circuit credited the FCC's tes-

timony that the dramatic increase in media outlets since 1959

[sic] eliminated the need for the fairness doctrine.” Arkansas

AFL-CIO v. FCC, 11 F.3d 1430, 1442 (8th Cir. 1993) (en

banc).

Chief Judge Richard S. Arnold, concurring in the same

case, concluded:

“The Red Lion holding . . . was premised on the

scarcity of broadcast frequencies available for licensing,

and the Court’s opinion explicitly indicated that its view

might change if more spectrum space became available,

or if experience with the fairness doctrine indicated that

it was reducing rather than enhancing the amount of

information available to the public.

“Developments since 1969 make it likely, in my view,

that the holding of Red Lion would be reconsidered. For

one thing, the FCC has given the ‘signal’ referred to in

League of Women Voters, supra. The Commission has

indicated both that the problem of spectrum scarcity is

rapidly disappearing and that the fairness doctrine has

had a chilling effect on the willingness of broadcast sta-

tions to cover coutroversial matters of public importance.

Whether the Supreme Court reexamines Red Lion is its

business, not ours. But developments subsequent to Red

Lion appear at least to raise a significant possibility that

the First Amendment balance struck in Red Lion would

look different today.” 11 F.3d at 1443 (Arnold, C.J., con-

curring) (citations omitted).

A similar view was expressed by Chief Justice Edwards of the

D.C. Circuit in Action for Children's Television, supra, who

noted:

“Although the Supreme Court has not declared the dis-

tinction between broadcast and other media a dead one,

it has not lately given the distinction an enthusiastic

endorsement. In fact, in recent years the Court has only

grudgingly upheld the distinction.” 58 F.3d at 674

(Edwards, C.J., dissenting).

Judge Edwards concluded:

“In my view, it is no longer responsible for courts to

apply a reduced level of First Amendment protection for

regulations imposed on broadcast based on an indefen-

sible notion of spectrum scarcity. It is time to revisit this

rationale.”* /d. at 675.

5 In a recent opinion of Judges Williams, Edwards, Silberman,

Ginsburg and Sentelle (dissenting from a denial of rehearing en banc in

a case involving the 1992 Cable Act’s requirements with respect to direct

In the district court opinion below, Judge Dalzell reviewed

the continuum of First Amendment protection accorded dif-

ferent media. American Civil Liberties Union v. Reno, 929 F.

Supp. 824, 873-77 (E.D. Pa.), prob. juris. noted, 117 S. Ct.

554 (1996). In the course of this review, he stated that spec-

trum scarcity “allows the Government to regulate content

even after it assigns a license.” Jd. at 874. Regrettably, his

Statement is an accurate articulation of the current state of

First Amendment jurisprudence. Amici submit, however, that

in light of Syracuse Peace Council and the explosive devel-

opments in the telecommunications area in the past decade,

including the extraordinary development of the Internet, aban-

donment of the spectrum scarcity rationale may commend

itself to this Court.

With that in mind, amici urge the Court to refrain in this

action from relying on any generalized notion that broad-

casters should receive some form of watered-down First

Amendment protection. After all, Red Lion itself did not pur-

port to offer a “final word” on anything; it was explicitly

based on the then “present state of commercially acceptable

technology,” 395 U.S. at 388. So much has changed since

then that we think it appropriate to urge the Court now to

avoid any reassertion of a doctrine that is so subject to

reassessment and of such dubious continuing validity.*

broadcast satellite), they noted that the continuing “intense criticism” of

Red Lion stemmed partly from -

“the perception that the ‘scarcity’ rationale never made sense—in

either its generic form (the idea that an excess of demand over sup-

ply at a price of zero justifies a unique First Amendment regime)

or its special form (that broadcast channels are peculiarly rare)”

and partly from “the growing number of available broadcast channels. ”

Time Warner Entertainment Co. v. FCC, ___ F.3d. __, 1997 WL. 47179

at *6 n.1 (D.C. Cir 1997) (Williams, J., dissenting).

® The only other basis that has been cited for affording broad-

casters a lower level of protection than other speakers is the conclusion

of the Court in Pacifica, supra, that the “uniquely pervasive” charac-

teristics of radio justified d'fferential constitutional treatment of indecent

CONCLUSION

The decision of the United States District Court for the

Eastern District of Pennsylvania should be affirmed.

Dated: February 20, 1997

Respectfully submitted,

FLOYD ABRAMS

80 Pine Street

New York, New York 10005

(212) 701-3000

Counsel for Amici Curiae

expression in that medium. 438 U.S. at 748. Amici will leave it to the par-

ties to address the applicability of Pacifica to this case except to note:

(a) Pacifica itself may well have been based upon the very notion of

spectrum scarcity addressed in this brief. Compare Turner Broadcasting,

supra, 512 U.S. at 639 (rejecting broadcast rationale for cable because of

“fundamental technological differences between broadcast and cable

transmission”) with Denver Area Educ. Telecommunications Consortium.

supra, 116 S. Ct. at 2388 (plurality opinion) (applying broadcast ratio-

nale to cable re indecent programming because “cable and broadcast tele-

vision differ little, if at all” as regards the viewer);

(b) the Court itself has noted that the plurality opinion in Pacifica “did

not command a majority of the Court.” R.A.V. v. City of St. Paul, 505

U.S. 377, 390 n.6 (1992); and

should, at the least, be revisited by the Court before its adoption by a

majority of the Court as a basis for regulation of all media that enter the

home—or any of them. See, ¢.g., Lucas A. Powe, American Broadcast-

ing and the First Amendment, 209-15 (1987) (criticizing decision as

“puzzling,” “troublesome” and “mystifying”); 4 Ronald D. Rotunda &

John E. Nowak, A Treatise on Constitutional Law, § 20.18 at 102 (2d ed.

1992) (describing Pacifica as “a disquieting and significant departure

from traditional first amendment theory”); Laurence H. Tribe, American

Constitutional Law § 12-18 at 935-38 (2d ed. 1988) (criticizing Pacifica);

Archibald Cox, The Supreme Court, 1979 Term: Forward: Freedom of

Expression in the Burger Court, 94 Harv. L. Rev. 1, 45 (1980) (explain-

ing Pacifica as “a narrow, highly particular decision pushing a number

of doctrinal exceptions to first amendment principles to their limits

because the exceptions conjoin”).

Of Counsel:

GAIL JOHNSTON

CAHILL GORDON & REINDEL

(a partnership including a

professional corporation)

Henry L. Baumann

Steven A. Bookshester

Jack N. Goodman

National Association

of Broadcasters

1771 N. St., N.W.

Washington, D.C. 20036

Counsel for National

Association of Broadcasters

Alan N. Braverman

John Zucker

ABC, Inc.

77 West 66th Street

New York, New York 10023

Counsel for ABC, Inc.

Howard Jaeckel

Susanna M. Lowy

CBS Inc.

51 West 52nd Street

New York, New York 10019

Counsel for CBS Inc.

Jon Fine

Lynn Oberlander

National Broadcasting

Company, Inc.

30 Rockefeller Plaza

New York, New York 10112

Counsel for National

Broadcasting Co., Inc.

APPENDIX

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

FCC 87-266

In re Complaint of

Es) SYRACUSE PEACE COUNCIL

TELEVISION STATION WTVH,

/ Syracuse, New York

OR Le eee es a eee ek

IO EE OW ee ee

eC Pe i tt

ed ee ee ee ee ee

MEMORANDUM OPINION AND ORDER

Adopted: August 4, 1987; Released August 6, 1987

By the Commission:

TABLE OF CONTENTS

PARAGRAPH

Se FE ccctincivedarvcbeatctcosscadennon |

Se. RE ceive dwetduccccbpectvadivesecessent 3

i, FE Pe I dich dendadcncceesecancss 3

B. History of this Proceeding ................... 7

1. Syracuse Peace Council v. Television

ID GHENUE on esucddcccdsccdsentcceses: 7

BD. FROME GO B FE sceccccccccvccs ces 11

3. Comments on Remand .................. 13

Se, SET nis sncbcckdenebisdasssdocesucotntuscon 17

A. Scope of this Proceeding—Procedural Issues 17

1. Discussion of Policy and Constitutional

BNE winvoncntntoscauutonecaeeeedinndses 17

2. Consideration of the Doctrine on its

Pepe ddsccatcavendoceenetnebéadseenterce< 27

B. Constitutional Considerations Under

sn sindntnedadntatsndudeddsadadeenesies 36

1. Red Lion Broadcasting v. FCC.......... 37

2. Application of the Red Lion Standard... 39

PARAGRAPH

(a) Chilling Effect of the Doctrine..... 42

(b) The Extent and Necessity of

Government Intervention into

Editorial Discretion................ 52

Os teeta 58

C. Preferred Constitutional Approach........... 62

1. Basis for Reconsidering Red Lion....... 66

2. The Scarcity Rationale .............0.:- 73

3. Divergence of Red Lion from Traditional

First Amendment Precepts .............. 83

4. First Amendment Standard Applicable

ntepeabessstacesenssebasoncs 95

ee, - Sain eeddhn cabaganntneecetneneeibes 98

I. INTRODUCTION

1. In Meredith Corp. v. FCC,' the United States Court

of Appeals remanded this case to the Commission for

further consideration of our decision, in this adjudica-

tion, to enforce the fairness dectrine* against station

| 809 F.2d 863 (D.C. Cir. 1987).

2 The fairness doctrine, as developed by the Commission, places

a two part obligation upon broadcast licensees. First, broadcasters have

an affirmative obligation to cover vitally important controversial issues

of interest in their communities. Second, they are obligated to provide

a reasonable opportunity for the presentation of contrasting viewpoints

-- —_

WTVH.’ The court found that the Commission, on the basis of

the evidence of record, had properly concluded that the sta-

tion failed to satisfy the requirements of the fairness doctrine.

It determined, however, that the Commission had acted arbi-

trarily and capriciously in not considering WTVH’'s con-

tentions that the enforcement of the doctrine deprived the

Station of its constitutional rights.

2. Pursuant to the court’s Order, we reopened this pro-

ceeding in order to consider the constitutional and public

interest issues raised by WTVH.‘ In light of “the general

importance of the issues in this particular case,”* we pub-

on those controversial issues of public importance that are covered. See,

e.g., Columbia Broadcasting System, Inc. v. Democratic National Com-

mittee, 412 U.S. 94, 110-11 (1973); Telecommunications Research and

Action Center v. FCC, 801 F.2d 501, 516 (D.C. Cir.), pet. for reh. en

banc denied, 806 F.2d 111 (D.C. Cir. 1986), cert. denied, 55 U.S.L.W.

3821 (U.S. 1987) (TRAC v. FCC); Fairness Report in Docket No. 19260,

48 FCC 2d 1 (1974), recon. denied, 58 FCC 2d 691 (1976), aff'd sub

nom. National Citizens Committee for Broadcasting v. FCC, 567 F.2d

1095 (D.C. Cir. 1977), cert. denied, 436 U.S. 926 (1978) (1974 Fairness

Report). The violation at issue in this case involved the second part of

the fairness doctrine.

3 Syracuse Peace Council v. Television Station WTVH Syracuse,

New York, 99 FCC 2d 1389 (1984), recon. denied, FCC 85-571 (released

Oct. 30, 1985), remanded sub nom. Meredith Corp. v. FCC, 809 F.2d 863

(D.C. Cir. 1987) (Syracuse Peace Council v. Television Station WTVH).

Congress has instructed the Commission “to consider alterna-

tive means of administration and enforcement of the Fairness Doctrine

and to report to the Cungress by September 30, 1987.” Making Con-

tinuing Appropriations for Fiscal Year 1987, Pub. L. No. 99-91, Title 5,

407, 100 Stat. 3341-66 (1986), initially assigned Pub. L. No. 99-500,

Title 5, 407, 100 Stat. 1983-66) (1986). See Inquiry Into Section 73.1910

of the Commission's Rules and Regulations Concerning Alternatives to

the General Fairness Doctrine Obligations of Broadcast Licensees in

MM Docket No. 87-26, FCC 87-67 (released Feb. 19, 1987), 52 Fed.

Reg. 7626 (March 12, 1987). In compliance with this congressional

directive, we have today adopted a “Report of the Commission” address-

ing these alternatives (Fairness Alternatives Report).

5 Syracuse Peace Council v. Television Station WTVH, FCC 87-

33 (released Jan. 23, 1987), 52 Fed. Reg. 2805-01, at 2 (Jan. 27, 1987)

(Order Requesting Comment).

lished a notice in the Federal Register inviting comment from

interested members of the public as well as from the parties

to this adjudication. As explained more fully below, based

upon this record, our experience in administering the fairness

doctrine, fundamental constitutional principles, and the find-

ings contained in our comprehensive /985 Fairness Report,°

we conclude that the fairness doctrine, on its face, violates the

First Amendment and contravenes the public interest. Accord-

ingly, we shall grant reconsideration of our earlier determi-

nations in this proceeding, and our previous orders in this

proceeding are hereby vacated. Any formal determination that

WTVH failed to comply with the requirements of the fairness

doctrine can no longer be used against WTVH in any subse-

quent renewal proceedings or in any other context.’

Il. BACKGROUND

A. 1985 FAIRNESS REPORT

3. As the Court noted in Meredith Corp. v. FCC, the Com-

mission recently conducted “a comprehensive reexamination

of the public policy and constitutional implications of the fair-

Regulations Concerning Alternatives to the General Fairness Doctrine

Obligations of Broadcast Licensees in Gen. Docket No. 84-282, 102

FCC 2d 145 (1985), petition for review docketed sub nom. Radio-Tele-

vision News Directors Association v. FCC, No. 85-1691 (D.C. Cir. filed

Oct. 22, 1985) (1985 Fairness Report). The findings contained in that

Report are summarized infra, at 3-6.

7 As noted above, the court in Meredith Corp. v. FCC held that

the agency acted unlawfully in enforcing the fairness doctrine without

considering whether this action was constitutional. It remanded the case

to the Commission to consider the constitutional issues raised by Mere-

dith, or, alternatively, to consider whether enforcement of the doctrine

was contrary to public policy. There is no explicit language in the court's

decision vacating or reversing the Commission's earlier orders, and con-

sequently we believe that our previous orders determining that WTVH

had violated the fairness doctrine and denying reconsideration of that

determination remained in effect after the court’s decision. We therefore

vacate those orders in today’s action.

ness doctrine.”* During the course of that proceeding, the

Commission considered more than one hundred formal com-

ments and reply comments, hundreds of informal submissions,

and oral arguments presented in two full days of hearings.

The inquiry culminated in the /985 Fairness Report released

by the Commission on August 23, 1985.° Because we believe

that the determinations made in the 1985 Fairness Report are

directly relevant to the issues on remand, in this section we

shall briefly summarize the major conclusions of that Report

before describing the history of this proceeding.

4. Based upon compelling evidence of record, the Com-

mission, in its 1985 Fairness Report, concluded that the fair-

ness doctrine disserved the public interest. Evaluating the

explosive growth in the number and types of information

sources available in the marketplace, the Commission found

that the public has “access to a multitude of viewpoints with-

out the need or danger of regulatory intervention.”'° The

5 Meredith v. FCC, 809 F.2d at 868. 1985 Fairness Report, supra

note 6. Because “ ‘regulatory agencies do not establish rules of conduct

to last forever,’ Motor Vehicles Manufacturers Association v. State

Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1982), quot-

ing American Trucking Association, Inc. v. Atchison, Topeka & Santa Fe

Railway Co., 387 U.S. 397 (1967), the courts have recognized “the need,

and indeed the responsibility, of the Commission to reevaluate its reg-

ulatory standards over time.” Office of Communication of the United

Church of Christ v. FCC, 707 F.2d 1413, 1425 (D.C. Cir. 1983) (footnote

omitted). See Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 411

(D.C. Cir. 1983). Cognizant of this responsibility, throughout its history,

the Commission has periodically reevaluated the fairness doctrine. /985

Fairness Report, supra note 6; 1974 Fairness Report, supra note 2; Edi-

torializing by Broadcast Licensees in Docket No. 8516, 13 FCC 1246

(1949) (1949 Fairness Report). The 1985 Fairness Report is both the

most recent and the most comprehensive reassessment of the doctrine

conducted by the agency.

% See supra note 6. The Court of Appeals characterized the con-

clusions reached by the Commission in the 1/985 Fairness Report as

“carefully documented and reasoned. . . .” Meredith v. FCC, 809 F.2d

at 867.

_ 10-1985 Fairness Report, 102 FCC 2d at 224.

Commission also determined that the fairness doctrine

“chills” speech, finding that “in stark contravention of its pur-

pose, [the doctrine] operates as a pervasive and significant

impediment to the broadcasting of controversial issues of

public importance.”"' In addition, the agency found that its

enforcement of the doctrine acts to inhibit the expression of

unpopular opinion;"? it places the government in the intrusive

role of scrutinizing program content;"’ it creates the oppor-

tunity for abuse for partisan political purposes;,'* and it

imposes unnecessary costs upon both broadcasters and the

Commission."*

5. While disclaiming any intention to “definitively resolve

whether or not the fairness doctrine is constitutional,”'* the

Commission questioned whether the doctrine is consistent

with the guarantees of the First Amendment. It stated that

“were the balance ours alone to strike, the fairness doctrine

would thus fall short of promoting those interests necessary

to uphold its constitutionality.”'’ The Commission recognized

that the Supreme Court in 1969 had upheld the doctrine in

Red Lion Broadcasting Co. v. FCC (Red Lion),"* but deter-

mined that the factual predicates underlying that decision had

been eroded.'”

1 Id. at 169.

12 Jd. at 188-90.

13 Jd. at 190-92.

4 Jd. at 192-94.

1S Jd. at 194-96.

16 Jd. at 155.

17 Jd. at 156.

18 —- 395 U.S. 367 (1969). The Red Lion decision is discussed more

fully infra, at 37-38.

19 ~~ The Commission determined that the constitutionality of the

fairness doctrine was suspect under the traditional constitutional stan-

dard of review governing broadcast regulation enunicated in Red Lion.

The Commission explained:

(footnote continued)

6. In the 1985 Fairness Report, the Commission did not

reach a definitive conclusion as to whether the doctrine was

codified.” In light of the “intense Congressional interest in

the fairness doctrine . . . the pendency of legislative pro-

posals,”?' as well as the uncertainty as to whether the doctrine

was in fact codified, the Commission concluded that “it

would be inappropriate at this time . . . to either eliminate or

significantly restrict the scope of the doctrine.” Expressing

its intention to continue to enforce the fairness doctrine, the

Commission forwarded its Report to Congress so that the leg-

islature would have “an opportunity to review the fairness

doctrine in light of the evidence [in that Report)}.””

B. HISTORY OF THIS PROCEEDING

1. Syracuse Peace Council v. Television Station WTVH

7. While the general inquiry on the fairness doctrine was

still pending before the agency, the Commission in this adju-

[W]e believe that the fairness doctrine can no longer be justi-

fied on the grounds that it is necessary to promote the First

Amendment rights of the listening and viewing public. Indeed,

the chilling effect on the presentation of controversial issues of

public importance resulting from our regulatory policies affir-

matively disserves the interest of the public in obtaining access

to diverse viewpoints. In addition, we believe that the fairness

doctrine, as a regulation which directly affects the content of

speech aired over broadcast frequencies, significantly impairs

the journalistic freedom of broadcasters.

1985 Fairness Report, 102 FCC 2d at 156.

20 ‘Id. at 245. In TRAC v. FCC, supra note 2—a case decided after

the Commission issued the /985 Fairness Report—the United States

Court of Appeals determined that the fairness doctrine was not codified

in Section 315 of the Communications Act. See 47 U.S.C. 315 (1982).

The Supreme Court recently denied the petitions for certiorari in that

case, 55 U.S.L.W. 3821 (U.S.1987), and consequently the decision in

TRAC v. FCC is final.

21-1985 Fairness Report, 102 FCC 24 at 247.

22 Id. at 148.

dication held that television station WTVH in Syracuse, New

York, had violated the doctrine.** The Commission deter-

mined that WTVH, by broadcasting a series of editorial

advertisements advocating the construction of the Nine Mile

Point II nuclear plant as a sound investment for New York,

presented a controversial issue of public importance. Finding

at that time that the station had failed to air any contrasting

viewpoints on the issue, the Commission concluded that

WTVH had not met its obligations under the fairness doctrine.

8. The Meredith Corporation, the licensee of station

WTVH, petitioned the Commission to reconsider its deci-

sion.2> Addressing the agency's administration of the doctrine,

Meredith argued that the Commission had misapplied admin-

istrative precedent and had erred in determining that the sta-

tion violated the fairness doctrine. Specifically, Meredith

contended that the Commission had erred in determining that

the issue was controversial at the time that the advertisements

were broadcast. It also argued that the agency had acted

incorrectly in framing the controversial issue of public impor-

tance. In addition, it asserted that the agency had improperly

distinguished an earlier administrative decision—Yes to Stop

Calloway Committee**—which, in its view, was “controlling

in this case. Finally, providing new evidence of additional

programming, Meredith asserted that it had in fact aired bal-

anced programming on the issue involved in this case.

9. In a supplement attached to its Reply,” Meredith

advanced a number of legal arguments asserting that the fair-

24 «Syracuse Peace Council v. Television Station WTVH, supra

note 3.

25° “Petition for Reconsideration,” filed by Meredith Corp., Syra-

cuse Peace Council v. Television Station WTVH (Jan. 22, 1985).

26-98 FCC 2d 1317 (1984).

27 “Reply to Opposition to Petition for Reconsideration and Sup-

¥ filed by Meredith Corp., Syracuse Peace Council v. Television

Station WTVH (filed Apr. 12, 1985) at 12-19 (Meredith Reply). That

10a

ness doctrine, as applied to the specific facts of the case sub

judice and on its face, was unconstitutional. First, it con-

tended that the Commission, by failing to follow the appro-

priate procedures governing the administration of the

doctrine, applied the fairness doctrine in a manner which vio-

lated its constitutional rights.** Second, proferring quantita-

tive data relating to the availability of broadcast stations,

cable systems and newer technologies in Syracuse, New York,

Meredith asserted that the assumptions of scarcity underlying

the Red Lion decision are not present in the specific market in

which WTVH operates.” Thus, while noting that “there may

exist situations today wherein sufficient media outlets do not

exist to ensure a multiplicity of both voices and view-

points,”*° Meredith asserted that the number and types of

information sources in Syracuse, New York, demonstrate that

the fairness doctrine is not constitutionally permissible in that

market.*' Third, Meredith stated that “the application of the

fairness doctrine to WTVH's editorial decision to air the com-

mercials [in this case) has had a distinct and chilling effect on

its freedom of speech.”*? Fourth, Meredith contended that

there was sufficient evidence in the Commission's pending

document is attached to the “Comments of Meredith Corp.” filed Feb.

25, 1987 in the instant proceeding.

** Meredith's first constitutional argument does not question the

constitutionality of the fairness doctrine on its face; rather, it is narrowly

limited in scope to the effect of the doctrine as applied to the facts of

this case. This argument apparently relies on the assertion that the

agency improperly substituted its determination of the issue addressed

in the editorial advertisements for that of the broadcast station instead

of assessing whether Meredith had exercised its reasonable judgment in

determining the issue addressed.

29 Id. at 26. See infra note 88.

30 Id. at 26-27.

3! Id. at 26-31.

32 Id. at 22. See id. at 31-33. Meredith stated that the Commis-

sion’s decision in this case that WTVH violated the fairness doctrine

would “work[ } a degree of self-censorship alluded to in Red Lion.” Id.

at 33.

fairness doctrine inquiry’? demonstrating that “the scarcity

rationale of Red Lion no longer exists”™ for the agency “to

reach the conclusion that, as a general matter, the Fairness

Doctrine contravenes the First Amendment rights of broad-

casters.”*> Thus, apparently questioning the legal and factual

basis upon which the constitutionality of the fairness doctrine

was upheld in Red Lion, Meredith asserted that “the Fairness

Doctrine as a whole lacks constitutional validity today.”**

10. In a Memorandum Opinion and Order, the Commission

denied Meredith's petition for reconsideration.*’ Addressing

in detail the nonconstitutional contentions raised by Mered-

ith,** the Commission concluded that it had correctly found on

the basis of the evidence before it that WTVH had violated

3 See Inquiry into the General Fairness Doctrine Obligations of

Broadcast Licensees in Gen. Docket No. 84-282, FCC 84-140 (released

May 8, 1984), 48 Fed. Reg. 20,317 (May 14, 1984). The fairness inquiry

was pending at the time that Meredith made this argument.

“4 Meredith Reply, at 26 0.29.

3S Jd. In addition, Meredith took the position that the interest of

the public in obtaining access to diverse viewpoints can be achieved by

less intrusive means than the fairness doctrine. /d. at 33-35.

3© Id. at 41. See id. at 19-26. Finally, Meredith argued that the fair-

ness doctrine lacks the requisite specificity required by the due process

clause of the Fifth Amendment and thus is unconstitutionally vague. /d.

at 35-38. See U.S. CONST. amend. V. In light of our conclusion that the

doctrine deprives broadcasters of their First Amendment nghts, we have

no need to resolve whether it also violates the due process clause of the

Fifth Amendment.

37s Reconsideration Order, supra note 3, at 9.

‘8 For example, the Commission determined that it was unrea-

sonable for station WTVH to have concluded that there was no ongoing

controversy of public importance on whether the Nine Mile [I plant was

a sound investment at the time the editorial advertisements were broad-

cast. Id. at 10-16. The Commission rejected Meredith's contention that

it had improperly reframed the issue identified by the complainant (id.

at 16 n.9), and found Meredith's reliance upon the Yes to Stop Calloway

Committee, 98 FCC 2d 1317 (1984), to have been misplaced. Recon-

sideration Order, supra note 3, at 17.

12a

the fairness doctrine.*® The agency, however, did not reach the

merits of Meredith's constitutional arguments. Citing the /985

Fairness Report, it stated that it had determined to continue

to enforce the doctrine “irrespective of [its] view concerning

the constitutionality of the Fairness Doctrine, [because] the

question of its repeal or its constitutionality is best left to

Congress and the courts.”*°

2. Meredith Corp. v. FCC

11. Meredith sought judicial review of the Commission's

order in the United States Court of Appeals for the District of

Columbia Circuit.*' The Court on review rejected Meredith's

contention that the Commission had misconstrved adminis-

trative precedent® or erred in determining that WTVH's

actions did not satisfy the requirements of the fairness doc-

trine.** It asserted, however, that the Commission had acted

39“ The Commission determined, however, that subsequent to the

date of its initial ruling, Meredith had provided information that WTVH

had in fact broadcast opposing views on this issue. The Commission

concluded that this information “demonstrate[d] the licensee's good fai.

in complying with the Fairness Doctrine and show([ed] its intention to do

so in the future.” Reconsideration Order, supra note 3, at 20.

40 Id. at 9.4.

4! “Petition for Review,” filed by Meredith Corp. in Meredith

Corp. v. FCC, No. 85-1723 (D.C. Cir., filed October 31, 1985).

42 Meredith Corp. v. FCC, 809 F.2d at 870-71. In its opinion, the

Court stated that it had “no doubt the Commission's application of its

fairness precedent must be sustained. he FCC's opinion thoroughly

explained its conclusions and persuasively distinguished the cases cited

by [Meredith).” /d. at 871.

43 Before reaching the merits of the case, the Court addressed two

procedural matters. First, the Court held that Meredith had standing

because the Commission had made a formal determination that WTVH

had violated the fairness doctrine. /d. at 868-69. Second, the Court

rejected the argument that Section 405 of the Communications Act, 47

U.S.C. 405 (1982), precluded it from considering the constitutional

issues because Meredith had raised these arguments for the first time in

a supplemental pleading filed after the deadline for petitions for recon-

sideration. Meredith Corp. v. FCC, 809 F.2d at 869-70.

13a

improperly in holding that Meredith violated the doctrine

without responding to the broadcaster's constitutional argu-

ments.** While noting that “[a]n agency is not required to

reconsider the merits of a rule each time it seeks to apply

it,”** the court stated that the Commission, in its /985 Fair-

ness Report:

has already largely undermined the legitimacy of its own

rule. The FCC has issued a formal report that eviscerates

the rationale for its existing regulations. The agency has

deliberately cast grave legal doubt on the fairness doc-

trine. . . [in] a formal fashion.*

44 Id. at 872-73. The Court stated that “in a formal adjudication,

an administrative agency is obliged to consider and respond to sub-

stantial arguments a respondent presents in its defense.” /d. at 873 (cita-

tions omitted).

46 Id. The Court of Appeals concluded that, on remand, avoiding

the constitutional issue in this case “appears clearly no longer available”

to the agency. Meredith Corp. v. FCC, 809 F.2d at 873 n.11. The Court

pointed out that it had recently determined, in TRAC v. FCC, supra note

2, that the fairness doctrine was not codified. In addition, the Court dis-

cussed the fact that Congress, subsequent to TRAC v. FCC, had enacted

appropriations legislation which referred explicitly to the fairness

doctrine both in the body of that statute and in its legislative history.

Meredith Corp. v. FCC, 809 F.2d at 873 n.11. See Making Continuing

Appropriations for Fiscal Year 1987, supra note 4, and H.R. Rep. No.

99-1005, 99th Cong., 2d Sess. 70-71 (1986). The court asserted that the

actual language of the appropriations legislation “does not appear to

mandate the fairness doctrine.” Meredith Corp. v. FCC, 809 F.2d at 873

n.11. The court probed counsel for the Commission, at oral argument, as

to whether the Commission could be bound by legislative intent, as

expressed in report language and other legislative history, but not in

actual legislation. In its decision, the court noted that counsel admitted

that legislative history was not !-gally binding. Despite the fact that the

court had before it legislative history indicating that at least some mem-

bers of Congress did not want the Commission to act on the fairness

doctrine, see id., the court nevertheless remanded the proceedings and

directed the Commission to consider the constitutional and public inter-

est challenges to the fairness doctrine, demonstrating its determination

12. In remanding the case to the Commission for further

consideration of Meredith's constitutional claims,*’ the Court

provided the Commission with several options. It indicated

that the Commission could address the constitutional issue

broadly or “choose to decide the issue narrowly, resting on

the particular circumstances of Meredith's case.” As a fur-

ther alternative, the Court stated that the Commission could

determine, “in an adjudicatory context, that the doctrine can-

not be enforced because it is contrary to the public interest

and thereby avoid the constitutional issue.”*’ In any event, the

that the various expressions of congressional intent did not codify the

doctrine nor justify continued delay in resolving petitioner's claim.

Subsequent to the court's decision in Meredith Corp. v. FCC, efforts

have been made to codify the fairness doctrine. S. 742, 100th Cong., Ist

Sess. (1987); H.R. 1934 (1987). See S. Rep. 100-34, 100th Cong., Ist

Sess. (1987); H.R. Rep. No. 100-108, 100th Cong. Ist Sess. (1987). S.

742 was passed by the Senate on April 21, 1987, and H.R. 1934 was

passed by the House of Representatives on June 3, 1987. The legislation,

however, was vetoed by the President on June 19, 1987, 23 Weekly

Comp. Pres. Doc. 715 (June 29, 1987), and on June 23, 1987, the Sen-

ate voted to return the bill to committee without attempting to override

the veto. 133 Cong. Rec. $8438 (daily ed. June 23, 1987). Thus, to date,

these efforts have not resulted in codification, and thus the fairness doc-

trine is not mandated by statute. Hence, this case does not involve the

authority of the Commission to question the constitutionality of a

statute.

Nearly seven months have passed since the Court of Appeals decided

Meredith Corp. v. FCC, and the Commission has had adequate time to

assess comments and to analyze the constitutional and public interest

challenges thoroughly. In light of these facts, and in light of the court's

clear directions in remanding this case, we believe that we can no longer

justifiably delay our response to WTVH's claims. Any further delay in

deference to Congress’ continuing interest in fairness legislation would

be inconsistent with our adjudicatory responsibilities, Meredith Corp. v.

FCC, 809 F.2d at 873-74, and proper administrative procedure, see

Koniag, Inc. v. Andrus, 580 F.2d 601 (D.C. Cir. 1978); Pillsbury v. FTC,

354 F.2d 952 (Sth Cir. 1966).

47 Id. at 874.

48 Id. at 872.

49 Id. at 872 n.10.

15a

court admonished the members of this Commission that the

failure to consider Meredith's constitutional arguments in its

defense was not only the “very paradigm of arbitrary and

capricious administrative action,” but may also have consti-

tuted a breach of the oath that each Commissioner took to

support and defend the Constitution.” This case was therefore

remanded for rectification, and we now consider it, in light of

that admonition.

3. Comments on Remand

13. In view of the importance and potentially far-ranging

impact of our decision on remand, we invited interested per-

sons, through publication of a notice in the Federal Register,

to submit comments on “whether, in light of the 1985 Fairness

Report, enforcement of the fairness doctrine is constitutional

and whether enforcement of the doctrine is contrary to the

public interest.”*' On remand, approximately fifty comments

were filed by individuals, broadcasters, advertisers, public

interest groups, trade associations, governmental entities and

others.*? The comments were approximately equally divided

between those who support and those who oppose the fairness

doctrine.*?

50 Id. at 874.

Order Requesting Comment, supra note 5, at 2.

‘2 A list of the commenting parties is contained in Appendix A.

8 ‘The American Civil Liberties Union (ACLU) and the Safe

Energy Communication Council (SECC) each filed a motion requesting

the Commission to accept their late-filed comments. “Motion for Leave

to File Comments Out-of Time,” filed by American Civil Liberties

Union, Syracuse Peace Council against Television Station WTVH (Mar.

3, 1987); “Motion for Leave to Submit Late-Filed Comments,” filed by

Safe Energy Communication Council, Syracuse Peace Council against

Television Station WTVH (Mar. 5, 1987). ACLU stated that it was unable

to submit its comments in a timely manner because it was involved in

other substantial litigation. SECC asserted that a substantial amount of

its draft comments was lost due to a computer malfunction, thereby pre-

venting it from filing its comments within the prescribed deadline.

Because both the ACLU and the SECC have shown good cause for the

16a

14. A number of fairness doctrine advocates argue that the

Commission should not consider either the propriety or the

constitutionality of the doctrine in this adjudication. For

example, certain proponents, including the New York State

Consumer Protection Board (New York) and the Office of the

United Church of Christ et al. (UCC), argue that the agency

lacks the authority to abolish the fairness doctrine in an adju-

dicatory proceeding because, in their view, it is an agency

rule which cannot be altered except through notice and com-

ment rulemaking procedures. The Syracuse Peace Council

(SPC) contends that the agency, on remand, should find, as a

factual matter, that Meredith Corporation did not violate the

fairness doctrine, and thus the Commission could avoid res-

olution of any general policy or constitutional issues. In addi-

tion, certain commenters suggest alternative proceedings or

approaches to the consideration of the issues on remand. For

example, a number of parties request the Commission vari-

ously to institute a rulemaking on the fairness doctrine, to

combine this adjudication with the proceeding addressing

alternative enforcement policies for the fairness doctrine, or

to defer consideration of this proceeding until after the alter-

natives proceeding is concluded or until the Supreme Court

has disposed of the petitions for certiorari in TRAC v. FCC.™

15. If the agency decides the case on the merits, some fair-

ness doctrine proponents state that the Commission should

limit its consideration to the narrow facts presented in this

adjudication. Arguing that the facts of this case are different

from the typical fairness doctrine case because, inter alia, the

controversial issue was presented in the context of an edito-

Commission to accept their late-filed comments, we shall grant their

motions.

‘4 The Democratic National Committee et al. (DNC) urge the

Commission to defer resolution of the issues on remand until after the

Supreme Court determines whether to grant certiorari in TRAC v. FCC.

On June 8, 1987, the Supreme Court denied the petition for certiorari in

TRAC v. FCC, and accordingly that request is now moot. See 55

U.S.L.W. 3821 (U.S. 1987).

17a

rial advertisement, SPC and others contend that this adjudi-

cation is an inappropriate vehicle for the Commission to

undertake a comprehensive evaluation of the doctrine on its

face. In addition, a number of fairness doctrine proponents

assert, as a general matter, that the doctrine is necessary to

assure access by the public to diverse viewpoints on contro-

versial issues. On the constitutional issue, they contend that

because there are more persons who wish to broadcast than

there are frequencies available, the “scarcity rationale” under-

lying the Red Lion decision still exists. Relying upon Red

Lion, they argue that the fairness doctrine is constitutional.

16. In contrast, many parties opposing the fairness doc-

trine, including the American Advertising Federation, the

National Broadcasting Co., Inc. (NBC), and the National

Association of Broadcasters (NAB), urge the Commission, in

this adjudication, to decide expeditiously whether the doctrine

furthers the public interest and comports with the First

Amendment. Relying upon the findings contained in the /985

Fairness Report, the American Association of Advertising

Agencies, the Landmark Legal Foundation, the Freedom of

Expression Foundation and others note that that there has

been a substantial increase in the number and types of infor-

mation services. They conclude that there is no scarcity of

information sources justifying governmental intervention into

the content of speech. NBC and others contend that fairness

doctrine enforcement requires the government to make deci-

sions concerning the content of programming that are fraught

with judgmental uncertainty. Asserting that the effect of the

doctrine is to inhibit the expression of views on controversial

issues of public importance, a number of commenters state

that there is no justification for the doctrine as a matter of

policy. In addition, many commenters for the same reasons

conclude that the doctrine violates the First Amendment

rights of broadcasters. As a consequence, they state that it

would be improper for the Commission to continue to enforce

the doctrine and urge the agency to take whatever action is

necessary to eliminate it.

18a

II]. DISCUSSION

A. SCOPE OF THIS PROCEEDING—

PROCEDURAL ISSUES

1. Discussion of Policy and Constitutional Issues

17. SPC asserts that the Commission should avoid con-

sidering the policy or constitutional issues on remand entirely

by resolving this case on the narrow factual issue concerning

whether Meredith had violated the fairness doctrine.** Specif-

ically, SPC urges us to grant Meredith’s Petition for Recon-

sideration and to vacate our earlier decision upholding the

validity of SPC’s own complaint on the grounds Meredith had

55 SPC notes that it had filed an objection to Meredith's Supple-

ment in the reconsideration proceeding. It contends that the agency

never considered its procedural objections to the acceptance of Mere-

dith’s Supplement in this adjudication. Renewing its request that the

Commission strike Meredith's Supplement on procedural grounds, it

asserts that the issue as to whether that document should be accepted “is

again properly before the Commission.” SPC Comments at 10. We dis-

agree. In Meredith Corp. v. FCC, the court stated that:

Clearly . . . the Commission had discretion to grant Meredith

leave to present its constitutional argument. And in its opinion

on reconsideration, the Commission exercised that discretion,

declining to bar Meredith's constitutional argument on proce-

dural grounds—implicitly waiving the timeliness objection.

809 F.2d at 869 (emphasis added). The court did not question the law-

fulness of the agency's waiver. To the contrary, it held that the Com-

mission erred in failing to address the constitutional issues raised by

Meredith in its Supplement. An essential and necessary ingredient of this

holding is that the arguments contained in the Supplement were properly

before the agency. Contrary to SPC’s suggestion, we are not free on

remand to reconsider the propriety of this waiver. While SPC correctly

notes that the court stated that “the Commission within its discretion

could have denied Meredith leave to file because of procedural defects”

(SPC Comments at 12, quoting Meredith Corp. v. FCC, 809 F.2d at 869

n.6 (emphasis added)), it fails to recognize that the Commission on

reconsideration declined to exercise this discretion. We do not believe

that there is anything in the court's statement to suggest that the court

intended to permit the agency to revisit this issue on remand. In any

event, if we were free to consider this issue, we would find that good

cause exists to exercise our discretion to accept Meredith’s Supplement.

19a

in fact complied with the fairness doctrine by providing

responsive programming.*®

18. We reject SPC’s request. The argument that Meredith

had in fact satisfied its fairness doctrine obligations by pre-

senting both sides of the controversial issue in question was

presented to the court in Meredith Corp. v. FCC. Nonetheless,

the court expressly affirmed our earlier finding that station

WTVH had violated the doctrine.*’ The affirmance of this

aspect of the case is final, and we have no power to revisit

this determination. It is well-established that:

[t]he decision of a federal appellate court establishes the

law binding further action in the litigation by another

body subject to its authority. The latter ‘is without power

to do anything which is contrary to either the letter or

spirit of the mandate construed in the light of the opin-

ion of [the] court deciding the case. . . ."*

56 The Court of Appeals, in Meredith Corp. v. FCC, held that we

erred by failing to consider the constitutional issues raised by Meredith.

By arguing that we should avoid consideration of the constitutional

issues on remand, SPC, in essence, is asking us to make the same mis-

take again.

57s‘ The court specified that “the Commission's application of fair-

ness doctrine precedent must be sustained.” Meredith Corp. v. FCC, 809

F.2d at 871. SPC, as intervenor in Meredith Corp. v. FCC, at that time

took the position, in contrast to that which it now takes, that “the FCC

correctly applied the fairness doctrine precedent to the facts of this

case.” Brief of Intervenor Syracuse Peace Council, Meredith Corp. v.

FCC, (D.C. Cir. No. 85-1723) at 28 (filed Aug. 19, 1986).

58 City of Cleveland, Ohio v. FPC, 561 F.2d 344, 346 (D.C. Cir.

1977), quoting Yablonski v. United Mine Workers, 454 F.2d 1036, 1038-

39 (D.C. Cir. 1971). See Louisiana Land and Exploration Co. v. FERC,

788 F.2d 1132, 1137 (Sth Cir. 1986) See generally Consumers Union of

United States, Inc. v. FTC, 801 F.2d 417, 421-22 (D.C. Cir. 1986)

(Scalia, J.). “The basic doctrine that, until reversed the dictates of a

Court of Appeals must be adhered to by those subject to the appellate

court's jurisdiction applies. . . [to the] rule respecting the law of the

case. Administrative agencies are no more free to ignore this doctrine

than are district courts.” Beverly Enterprises, Inc. v. NLRB, 727 F.2d

591, 594 (6th Cir. 1984) (citations omitted).

20a

“The prior appellate review and determination of [a fairness

doctrine violation] . . . foreclose the opportunity to rede-

termine th{at] issue [ ]."°* SPC would have the Commission

on remand revisit issues definitively decided by the Court of

Appeals for the apparent purpose of avoiding the policy and

constitutional issues which the court specifically directed us

to consider. Such an approach would contravene the court's

decision in Meredith Corp. v. FCC, and we decline to adopt

it.

59 Stewart Warner Corp. v. City of Potomac, Michigan, 767 F.2d

1563, 1568 (Fed. Cir. 1985).

60 Arguing that the issues in this adjudication and those in the

alternatives proceeding (see supra note 4) are interrelated, the DNC

urges the Commission to consolidate this proceeding with the pro-

ceeding addressing fairness doctrine alternatives. It states further that

it:

continue[s} to believe that no modification of the Fairness

Doctrine is necessary on either policy or constitutional grounds.

If the Commission is committed to proceeding, however, the

only viable approach would be for it to make a good-faith effort

to explicitly formulate, consider and act upon alternative pro-

posals by expeditiously issuing a Notice of Proposed

Rulemaking proposing the adoption of specific alternatives,

while simultaneously suspending activities in the Meredith

docket.

DNC Comments at 6. We will not adopt DNC’s proposal. In Meredith

Corp. v. FCC, 809 F.2d at 873 n.11, the court expressly recognized that

the agency was under a legislative mandate to consider alternative means

of administration and enforcement of the doctrine, but did not suggest

that the two proceedings were inextricably interrelated. Nor did the court

intimate that the agency should suspend consideration of the issues on

remand pending completion of the alternatives proceeding. We note,

however, that former Chairman Fowler did tell members of Congress

that we would not decide this case on remand before concluding the

alternatives report. Rather, he told them, we would decide this case at

either the same meeting that we adopt the alternatives report or at a sub-

sequent meeting. Departments of State, Justice, Commerce, the Judi-

ciary, and Related Agencies for Fiscal Year 1988 Budget Estimates:

Hearings Before a Subcomm. of the Senate Comm. on Appropriations,

100th Cong., Ist Sess. (Feb. 18, 1987) (testimony of Chairman Fowler);

see also Departments of Commerce, Justice, and State, the Judiciary,

2la

19. Therefore, in this Memorandum Opinion and Order,°'

we consider whether the fairness doctrine is consistent with

and Related Agencies Appropriations for 1988: Hearings Before a Sub-

comm. of the House Comm. on Appropriations, 100th Cong., | st Sess.

642 (1987) (testimony of Chairman Fowler). As noted above, supra note

4, we have complied with that representation by today adopting and sub-

mitting the report requested by Congress. We have concluded in that

report that it would not further the public interest to institute a rule-

making to consider the promulgation of agency rules on fairness doctrine

alternatives. As a consequence, we do not believe that a suspension of

this proceeding is warranted. See infra note 87. Furthermore, we note

that the only issue before wus in this proceeding is the continued viabil-

ity of the fairness doctrine as it is currently administered. Consideration

of ms issue does not necessitate any additional evaluation of alternative

policies.

o Certain parties argue that the Commission lacks authority to

conduct this proceeding because the Court of Appeals, in Meredith Corp.

v. FCC, had not formally issued the mandate remanding the case to the

Commission at the time the Commission invited comments on this pro-

ceeding. E.g., “Comments of Syracuse Peace Council,” filed Feb. 25,

1987, at 3-4 (SPC Comments); “Comments of Democratic National

Committee et al.,” filed Feb. 25, 1987, at 2 (DNC Comments).

We reject this technical argument. The courts have long recognized

that the “concept of an indivisible jurisdiction which must be all in one

tribunal or all in the other may fit other statutory schemes, but not that

of the Communications Act.” Wrather-Alverez Broadcasting v. FCC, 248

F.2d 646, 649 (D.C. Cir. 1957). See 47 U.S.C. 405 (1982); see also

United States v. Benmar Transport & Leasing Corp., 444 U.S. 4 (1957),

American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 541

(1970). Indeed, it is not uncommon for both the Commission and the

appellate courts concurrently to exercise jurisdiction over the same

proceeding. In Containerfreight Corp. v. United States, 752 F.2d 419

(9th Cir. 1985), the court rejected an allegation, similar to the one

presented in this proceeding, that the Interstate Commerce Commission

had improperly reopened a proceeding prior to the issuance of a judi-

cial mandate. Stating that its remand decision “plainly invited the

Commission to solicit additional evidence,” the court held that the

remand proceedings had been “lawfully conducted.” /d. at 427. The

court pointed out that the Commission's action was “simply to get on

with the business of complying” with the court's remand decision. /d.

Similarly, the Order Requesting Comments, “far from being inconsistent

with (the Court's] decision in (Meredith Corp. v. FCC), was invited by

it.” Jd. Similarly, in this case, the only action taken by the Commission

22a

the guarantees of the First Amendment and whether it com-

ports with the public interest. As noted above, the court

ordered the Commission to consider Meredith's constitutional

arguments unless it decided, on policy grounds, not to enforce

the fairness doctrine. As we began to examine the policy

issues, however, it became evident to us that the policy and

constitutional considerations in this matter are inextricably

intertwined and that it would be difficult, if not impossible,

to isolate the policy considerations from the constitutional

aspects underlying the doctrine.” We believe, as a result, that

before the mandate issued was to invite comments, which was com-

pletely consistent with the court's instructions. Further, in subsequent

pleadings filed with the court, we informed the court of our Order

Requesting Comments, “Opposition to Motion for Stay of Mandate,

filed by Federal Communications Comm'n, No. 85-1723 (Feb. 17,

1987), at 2 n.2, and, having received no indication to the contrary, we

have no basis to conclude that our Order Requesting Comments was

inappropriately issued.

In any event, on April 10, 1987, the Court of Appeals issued its man-

date. As a consequence, the contentions that the Commission lacks jurs-

diction to issue any substantive orders prior to the issuance of the

mandate are moot.

62 Our decision to analyze the constitutional and policy issues sep-

arately in the /985 Fairness Report was out of an abundance of caution

not to overstep our appropriate role in this matter. At that time, the

uncertainty as to the fairness doctrine’s codification, together with

Congress’ intense interest in the issue, led us to question the propriety

of reaching a conclusion on the constitutionality of the doctrine. See

1985 Fairness Report, 102 PCC 2d at 155-56. Furthermore, as noted

earlier in this proceeding, we believed that the resolution of the con-

stitutional issues was better left to Congress and the courts. See Recon-

sideration Order, supra note 3, at 5 n.4. Consequently, our analysis in

the /985 Fairness Report focused on a policy perspective so as not to

run afoul of these concerns. We believe, however, as we reiterate today,

that our analysis of the fairness doctrine in 1985 was in fact informed

and driven by First Amendment principles, and with the uncertainty of

the doctrine's codification removed, TRAC v. FCC, supra note 2, and the

Meredith court's directive to consider the constitutional issues, Mered-

ith Corp. v. FCC, supra note 1, we believe that it is now incumbent upon

us to consider the doctrine in terms of the inextricable constitutional

issues on which the policy rests.

23a

it is appt, jriate and necessary to address the policy and con-

stitutional issues together for a number of reasons.”

20. First, in an analysis of any Commission regulation, it

is well-established that First Amendment considerations are

an integral component of the public interest standard. For

example, in FCC v. National Citizens Committee for Broad-

casting,” the Supreme Court stated that

the “ ‘public interest’ standard necessarily invites ref-

erence to First Amendment principles,’ Columbia

Broadcasting System, Inc. v. Democratic National Com-

mittee, 412 U.S. 94, 122 (1973), and, in particular, to the

First Amendment goal of achieving “the widest possible

dissemination of information from diverse and antago-

nistic sources,” Associated Press v. United States, 326

U.S. 1, 20 (1945).*

A meaningful assessment of the propriety of the doctrine,

therefore, uecessarily includes an evaluation of its consti-

tutionality. If the doctrine impedes the realization of

First Amendment objectives—and, as explained more fully

* Certain parties have continued to argue that the Commission

lacks jurisdiction to consider the policy or constitutional implications of

the fairness doctrine on the grounds that the doctrine is mandated by

Statute. As noted supra, at note 46, the court in Meredith Corp. v. FCC,

expressly stated that the Commission could not determine, on remand,

that the fairness doctrine is statutory. Indeed, the court pointed out that

the argument that the doctrine had been codified by Section 315 of the

Communications Act had already been rejected by the court in TRAC v.

FCC, supra note 2. Therefore, in conformance with the court's express

directive in Meredith v. FCC, we shall not consider the arguments raised

by the comments that the doctrine is statutory and, consequently, that the

agency lacks jurisdiction to question either its propriety or its consti-

tutionality.

4 = 436 : U.S. 775 (1978).

$436 U.S. at 775. See also American Security Council Education

Foundation v. FCC, 607 F.2d 438, 443 n.12 (D.C. Cir. 1979), cert.

denied, 444 U.S. 1013 (1980).

24a

below, we believe that it does—a fortiori it disserves the pub-

lic interest.

21. A second, but related, reason that the policy and con-

stitutional issues are inextricably intertwined is that the pro-

motion of First Amendment values was the Commission's

core policy objective in establishing and maintaining the doc-

trine. The parameters defining the need and desirability of

government intervention under the fairness doctrine are coex-

tensive with those of the First Amendment. Therefore, if the

doctrine fails to further First Amendment principles, or if it

strays from those parameters established by the Constitution,

it necessarily follows that the doctrine does not achieve the

specific purpose for which it was intended and can no longer

be sustained.®’

22. Third, this Commission was established by Congress as

the expert agency in broadcast matters and possesses more

than fifty years of experience with the day-to-day imple-

mentation of communications regulation. As a consequence,

the courts, when considering the constitutionality of broadcast

regulation, have found our perspective informative. For exam-

ple, the Supreme Court has stated that “in evaluating or

First Amendment claims . . . we must afford great weight to

the decisions of Congress and the experience of the Com-

6 In our 1974 Fairness Report, we asserted that there was a sym-

metry of purpose between the fairness doctrine and the First Amend-

ment:

of the First Amendment itself: “to preserve an uninhibited mar-

ketplace of ideas in which truth will ultimately prevail. . . .

48 FCC 2d at 6, quoting Red Lion Broadcasting Co. v. FCC, 395 U.S.

at 390. See also 1949 Fairness Report, 13 FCC at 262-63.

67 Conversely, as we noted in the /985 Fairness Report, “the same

factors which demonstrate that the fairness doctrine is no longer appro-

priate as a matter of policy also suggest that the doctrine may no longer

be permissible as a matter of constitutional law.” 102 FCC 2d at 147-48.

25a

mission. . . .”* Further, the Court of Appeals, in remanding

this case to the Commission, affirmatively stated that it

“may well benefit—in the event of further review—from the

Commission's analysis [of the constitutional issue].

Accordingly, we consider the constitutional and policy issues

raised in this proceeding as being derived from the same set

of principles.

23. We reject the contention of those parties who argue that

we cannot address the broad policy and constitutional issues

involving the fairness doctrine in this proceeding, but must

issue an additional rulemaking notice to do so.” In Meredith

Corp. v. FCC, the Court explicitly stated that the Commission

could decide this case on broad policy and constitutional

grounds.”' The contention, then, that the Commission lacks

authority to consider these issues in this adjudication is

directly at odds with the directive of the Court of Appeals in

remanding this case to the agency.

24. It is well-established, moreover, that “administrative

agencies have wide leeway in choosing to announce rules and

intepretations in the course of adjudications.””? The courts

e Columbia Broadcasting System, Inc. v. Democratic National

Committee, 412 U.S. at 102. See FCC v. League of Women Voters of Cal-

ifornia, 468 U.S. 364, 376 n.11 (1984).

69 Meredith Corp. v. FCC, 809 F.2d at 872.

E.g., “Comments of Office of Communication of the United

Church of Christ, Communication Commission, National Council of

Churches, Henry Geller and Donna Lampert” at 2-4 (Feb. 12, 1987)

(UCC Comments); “Comments of the New York State Consumer Pro-

tection Board” at 2-4 (Feb. 24, 1987) (New York Comments); “Com-

ments of the American Civil Liberties Union” at 2 n.1 (March 2, 1987)

(ACLU Comments).

11 Meredith Corp. v. FCC, 809 F.2d at 872.

72 International Union, United Automobile, Aereospace & Agri-

cultural Implement Workers of America v. Brock, 783 F.2d 237, 246

(D.C. Cir.1986). Indeed, the Supreme Court has stated that an admin-

istrative agency “is not precluded from announcing new principles in an

adjudicative proceeding and that the choice between rulemaking and

26a

have duly recognized that “the choice whether to proceed by

rulemaking or adjudication is primarily one for the agency

regardless of whether the decision may affect agency policy

and have general prospective application.”’’ While acknowl-

edging this long established rule of administrative law,” cer-

tain parties nonetheless contend that the Commission's

discretion in selecting the type of proceeding in which to con-

sider its policies would be abused were the Commission to

address the broad constitutional and policy issues in this adju-

dication.’> We disagree. Even if this case only involved a sit-

uation in which the agency decided on its own motion to

reevaluate in an adjudication the propriety and the constitu-

tionality of the fairness doctrine, this course of action would

be lawful. The courts permit the Commission to reassess

administrative precedent in adjudications even where the reg-

ulatory policy is of long standing and has far reaching

adjudication lies in the first instance within the [agency's] discretion.”

NLRB vy. Bell Aerospace Co., 416 U.S. 267, 294 (1974). See SEC v.

Chenery, 332 U.S. 194, 203 (1947), quoting Columbia Broadcasting

System v. United States, 316 U.S. 407, 421 (1942) (And the choice made

between proceeding by general rule or by individual ad hoc litigation is

one that lies primarily in the informed discretion of the administrative

agency.).

7% Chisholm v. FCC, 538 F.2d 349, 365 (D.C. Cir.), cert. denied,

429 U.S. 890 (1976) (FCC had discretion in reversing an administrative

interpretation involving the “equal time” provisions of Section 315 of

the Communications Act by adjudication).

™ See, e.g., ACLU Comments at 2, n.1.; SPC Comments at 17-18.

75 Because this adjudication does noi involve certain issues which

are present in some fairness doctrine cases, e.g., noncommercial pro-

gramming, the first prong of the doctrine, ballot questions, election-

related issues, the political editorial rules or the personal attack rules,

SPC contends that it would be an abuse of our discretion to addr’ s the

general policy and constitutional issues in this adjudication. Se SPC

Comments at 17. To the extent that SPC challenges our ability to review

the parent fairness doctrine in this adjudication involving its application

in a particular context, we do not accept this argument. See supra 27-35.

Because this decision will serve as precedent in future cases, we need

not—and do not—decide here what effect today’s ruling will have on

every conceivable application of the fairness doctrine.

27a

effect.’”* In any event, the agency reopened this proceeding

pursuant to an express judicial directive to consider the law-

fulness of enforcing the fairness doctrine against station

WTVH, provided explicit notice of the matters at issue, and

solicited comment from all interested parties. It can hardly be

an abuse of discretion for an agency to comply with an order

of the Court of Appeals by addressing on remand the precise

issues contemplated by that court.

25. We also reject the contention that we are barred from

considering the propriety of the fairness doctrine because it is

an agency rule which can not be modified or eliminated

except through the notice and comment procedures prescribed

in Section 4 of the Administrative Procedure Act (APA).”’

The fairness doctrine was never promulgated as an agency

regulation pursuant to a notice and comment rulemaking pro-

cess. Rather, it was developed over a period of time” through

statements of policy (without notice and comment) and case-

by-case adjudications. The first fairness doctrine obligations

were imposed by the FCC and its predecessor, the Federal

Radio Commission, in early adjudicatory proceedings.’® The

policy was clarified and further developed in subsequent

adjudications and in reports issued by the Commission in

1949 and 1974. The fairness doctrine was established, with-

7 $ U.S.C. 553 (1982),

) As we stated in the /985 Fairness Report, “the genesis of the

fairness doctrine reveals an evolutionary process, spanning over a con-

siderable period of time.” /985 Fairness Report, 102 FCC 2d at 146.

— E.g., Great Lakes Broadcasting Co., 3 FRC 32 (1929), rev'd on

other grounds, 37 F.2d 993 (D.C. Cir.), cert. dismissed, 281 U.S. 706

(1930); Young People's Association for the Propagation of the Gospel,

6 FCC 178 (1938); Mayflower Broadcasting Corp., 8 FCC 333 (1941).

80-1949 Fairness Report, supra note 8; 1974 Fairness Report,

supra note 2. For a history of the fairness doctrine, see Inquiry into

Section 73.1910 of the Commission's Rules and Regulations Concern-

ing the Ceneral Fairness Doctrine Obligations of Broadcast Licensees

in Gen. Docket No. 84-282 (Notice of Inquiry), FCC 84-282 (released

May 8, 1984); 49 Fed. Reg. 20,317 (May 14, 1984) at 9-24.

28a

out notice and comment, and there is no requirement that it

now be modified or eliminated through notice and comment

rulemaking.*'

26. Contrary to the contentions of parties such as the Office

of Communications of the United Church of Christ, the fact

that the fairness doctrine is referred to in Section 73.1910 of

our rules®? does not mean that it can be altered or eliminated

only by means of a notice and comment rulemaking. The ref-

81 —- We note, however, that, in any event, we opened the record in

this very proceeding to accept comments from interested persons

(whether or not parties to the proceeding) as to the appropriate course

of action for us to take following the Meredith Corp. v. FCC decision.

Order Requesting Comment, supra note 5. We believe that, in light of

the Order Requesting Comment, the 1985 Fairness Report (the culmi-

nation of a proceeding in which interested persons had ample opportu-

nity to participate, see supra 3), and the Meredith case itself, interested

persons had adequate notice and opportunity to comment on a pro-

ceeding that would obviously consider, and possibly rule on, the con-

stitutionality of the fairness doctrine even if notice and comment were

required. Indeed, a substantial number of commenters in this proceed-

ing addressed the constitutional issues raised by this case. We see little

difference between a Section 553 notice and comment rulemaking and

the procedures followed in this adjudication. Therefore, even were

notice and comment rulemaking procedures prescribed by the APA, this

proceeding is comparable to the situation in Chisholm v. FCC, in which

the Court of Appeals stated that it:

see[s] no advantage to be gained in this instance by requiring

the Commission to proceed via the formalities of rulemaking

rather than through adjudication. Petitioners . . . all submitted

lengthy comments to the Commission. . . . [TJhe issues were

fully aired before the Commission, which had the benefit of

all arguments raised before this court. It is therefore difficult

to see how requiring the Commission to go through the motions

of notice and comment rulemaking at this point would in any

way improve the quality of the information available to the

Commission or change its decision. The only result would be

delay while the Commission accomplished the same objective

under a different label. Such empty formality is not required

where the record demonstrates that the agency in fact has had

the benefit of petitioners’ comments. § 538 F.2d at 365.

82 47 CFR. 73.1910 (1986).

29a

erence to the fairness doctrine was incorporated in the Code

of Federal Regulations in 1978.*° The Commission, without

extensive analysis, had concluded at that time that the doc-

trine was codified by Section 315 of the Communications Act.

Section 73.1910, which was adopted without notice and com-

ment as part of an omnibus procedural restructuring of the

broadcast rules, is a simple statement setting forth what the

Commission erroneously perceived to be required by Section

315." Specifically, in adopting Section 73.1910, the Com-

mission stated that:

The new rule simply states that the Fairness Doctrine is

in Section 315(a) of the Communications Act, directs the

rule user to the FCC public notice, “Fairness Doctrine

and the Public Interest Standard,” . . . and includes

information on obtaining copies of this do

aS aeeee Pp cument from

Its adoption did not effectuate any change in broadcasters’

obligations under the fairness doctrine. The Court of Appeals

decision in TRAC v. FCC that the fairness doctrine is not cod-

ified in Section 315 renders Section 73.1910 of our rules

meaningless, and it consequently has no relevance to the

issues addressed in this proceeding.

Reregulation of Radio and Television Broadcasting, FCC 7

, 8-

681 (released Oct. 16, 1978), 43 Fed. Reg. 45,842 (Oct. 4, 1978).

84 In its entirely, Section 73.1910 states that:

The Fairness Doctrine is contained in section 315 of the

Communications Act of 1934, as amended, which provides that

broadcasters have certain obligations to afford reasonable

opportunity for the discussion of conflicting views on issues of

public importance. See FCC public notice “Fairness Doctrine

and the Public Interest Standards,” 39 FR 26372. Copies may

— from the FCC upon request. § 47 C.F.R. 73.1910

85 :

Reregulation of Radio and Televisi |

eo. 0s 0800 elevision Broadcasting, 43 Fed.

30a

2. Consideration of the Doctrine on its Face

27. After reviewing Meredith's several arguments in its

defense,®* we are persuaded by its argument that the fairness

doctrine is unconstitutional on its face. We, therefore, do

not—and, as explained below, cannot—confine our determi-

nation of the issues involved here to the specific facts of this

adjudication. We do not believe that the constitutionality or

the propriety of our holding that WTVH violated the fairness

doctrine turns narrowly upon either the specific manner in

which we have enforced the doctrine in this instance®’ or upon

86 See supra 9.

87 Although Meredith challenged the constitutionality of the doc-

trine on its face, it alternatively asserted that the method in which we

administered the doctrine in this case was unconstitutional. See supra

9. For two reasons, the constitutional determination herein shall not rest

upon a narrow, “as applied” basis. First, Meredith's argument is

premised upon the alleged failure of the Commission to follow the estab-

lished procedures governing the enforcement of the fairness doctrine.

Both the Commission on reconsideration and the Court of Appeals on

review have already squarely rejected that argument. Second, we believe

that the infringement on broadcasters’ constitutional rights resulting

from the application of the doctrine cannot be cured simply by a _

portedly less intrusive enforcement mechanism. As we stated in the 198

Fairness Report: gm

[W]e have enforced the doctrine with a view toward minimiz-

ing editorial intrusion on broadcast journalists. But the record

in this proceeding has convinced us that the fairness doctrine

generally operates to inhibit the presentation of controversial

issues of public importance on the airwaves. Because the

inhibiting effect is an inevitable result of the substantive rule

itself, even carefully crafted implementing mechanisms have

not been successful in preventing the fairness doctrine from

operating to deter broadcasters from airing important and con-

troversial issues.

FCC 2d at 184 (footnote omitted). In the Fairness Alternatives

Pn supra note 4, we evaluated a number of proposals concerning

alternative means of enforcing the fairness doctrine. In that Report, we

reaffirmed our earlier determination that less intrusive enforcement of

the existing fairness doctrine would not eliminate the “chilling effect

of the fairness doctrine, but determined that certain alternatives to the

3la

any unique circumstances in the particular geographic market

in which we have applied it.** Rather, we believe, as more

fully discussed below, that the doctrine’s infirmity of imper-

missibly chilling and reducing the discussion of controversial

issues of public importance is not an infirmity resulting from

the enforcement of the doctrine in this particular case or in

particular markets, but is an infirmity that goes to the very

heart of the enforcement of the fairness doctrine as a general

matter. We believe that the relevant issue in this proceeding

is whether the doctrine itself complies with the strictures of

the First Amendment and thereby comports with sound pub-

lic policy. Therefore, in order to resolve the issues that the

Court directed us to consider, we conclude that we have no

choice but to consider Meredith’s challenge to the facial

validity of the fairness doctrine itself.*®

fairness doctrine were nevertheless preferable to the existing doctrine.

See supra note 60.

*$ In its Reply, Meredith described the multiplicity of information

sources available to listeners and viewers in Syracuse, New York.

Although we believe, as discussed below, that the explosive growth in

the number and types of information sources available to the public in

the years since the Supreme Court's decision in Red Lion reinforces that

the doctrine is unconstitutional, see infra 55-57, we believe that this is

a factor, present in all markets, that makes the doctrine unconstitutional

as a general matter. Further, neither this growth nor the actual number

and types of information sources themselves have a bearing on the

unconstitutional chilling effect that we have identified from the enforce-

ment of the doctrine. Our concern for this chilling effect crosses all geo-

graphic and economic markets—from the largest to the smallest. Indeed.

our concern is especially compelling in the smaller markets, where a

chill would seriously deprive the public in those markets of access to

robust, uninhibited debates on issues of public importance. The fact that

the fairness doctrine is unconstitutional because it chills speech cannot

change based on the size of the market in which the chill occurs. There-

fore, we see no reason to limit our decision to the enforcement of the

fairness doctrine in particular markets.

= bk remanding the case to the Commission for consideration of

the constitutional issue, the court, in Meredith Corp. v. FCC, had left it

to the Commission to determine whether the constitutional issue could

be dealt with “narrowly, resting on the particular circumstances of

Meredith's case,” or whether it ought to be dealt with “more broadly.”

809 F.2d at 872.

32a

28. We also believe that there are cogent reasons why we

must consider the broad policy and constitutional issues in

this adjudication.” The particular broadcast at issue in this

adjudication involved the broadcast of an editorial adver-

tisement,’' which triggered our enforcement of the fairness

doctrine as expressed more particularly through the Cullman

doctrine.” Although, at first blush, it appears that our deci-

sion could be limited to such announcements and to the con-

tinued vitality of the Cullman doctrine, closer scrutiny reveals

that the policies involved cannot be segregated on any prin-

cipled basis, so that such an approach is untenable.

9 As the Court in Meredith Corp. v. FCC noted, the 1985 Fair-

ness Report casts doubt upon the continued lawfulness of the fairness

doctrine. 809 F.2d at 873. By resolving the issues in this proceeding

broadly, we will remove the uncertainty that currently exists concerning

the propriety and the constitutionality of the doctrine.

91 The purpose of editorial advertising—like the advertisement in

New York am Sullivan, 376 U.S. 476 (1957)—is to ee

opinions on important public issues rather than to carry out commercia

transactions. Therefore, in its objective, editorial advertising is a

cal to the other types of broadcast speech on important, eae

issues that implicate the fairness doctrine. It is, in essence, —

speech and not merely commercial speech, thereby deserving of 4

tections accorded to the former and not the latter category of speec

under the First Amendment. Compare id., Consolidated Edison v. Pub-

lic Service Comm'n, 447 U.S. 530 (1980) (political speech); with Cen-

tral Hudson Gas v. Public Service Comm'n, 447 U.S. 357 (1980)

(commercial speech); Virginia Pharmacy Board v. Virginia Consumer

Council, 425 U.S. 748 (1976) (commercial speech).

the type of editorial advertisement at issue in this and

an ete dueudas erauuatiaas should be distinguished from paid

political advertisements, the broadcast of which would constitute a “use

within the meaning of 47 U.S.C. §§ 312(a)(7) and 315 and thereby trig-

ger the particular obligations enumerated in the statute. Our —

herein focuses only on the group of obligations that comprise the fair-

ness doctrine, which are separate and distinct from hana

imposed by 47 U.S.C. §§ 312(a)(7) & 315. The latter obligations are thus

not at issue in this proceeding.

92 Cullman Broadcasting Co., 25 RR 895 (1963).

33a

29. The Cullman doctrine developed from a particular

application of the fairness doctrine in Cullman Broadcasting

Co.** The Cullman case clarified that the fairness doctrine

applies to a broadcaster's airing of an editorial advertisement

that presents for the first time one side of a controversial

issue of public importance, thereby requiring the broadcaster

to afford a reasonable presentation of contrasting viewpoints

on that issue. Under the Cullman doctrine, if a broadcaster

does not intend to present contrasting viewpoints through its

Own programming and cannot obtain paid sponsorship for the

presentation of such viewpoints, then it cannot refuse to

broadcast a presentation of those viewpoints (otherwise suit-

able to the licensee) on the ground that it cannot obtain paid

sponsorship for that presentation.** The Cullman doctrine is,

in reality, no more than a statement that the fairness doctrine

must be complied with regardless of the availability of pay-

ing program sponsors,” and, as explained more fully below,

93-25 RR 895 (1963).

94 Id. at 897.

Indeed, in the Cullman case itself, the Commission considered

its holding to be an application of the fairness doctrine when it said: “We

hope that the views set forth above will be helpful in determining the

requirements of the ‘fairness doctrine’ with respect to controversial

issues such as this one.” /d. at 897. We also note that, in the Red Lion

decision, the Supreme Court cited to the Cullman doctrine as only one

element of a collection of principles that comprise the fairness doctrine.

See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 377-78.

The Cullman doctrine has been criticized on the grounds that it

requires broadcasters to present balanced programming as a result of

issues and viewpoints presented through advertisements. Such adver-

tisements, according to critics, are not properly considered part of broad-

Casters’ programming, since they are prepared by individual private

interests and are not the product of broadcasters’ editorial discretion.

Additionally, critics argue that broadcasters should be held responsible

under the fairness doctrine only for the programming that they produce.

Although these arguments identify problems associated with the enforce-

ment of the Cullman doctrine, they do not serve to distinguish the Cull-

man doctrine from the fairness doctrine. Rather, Cullman is consistent

with the fairness doctrine’s focus on broadcasters’ overall programming

and the exercise of their discretion in accepting editorial advertisements

34a

its infirmity stems from the very heart of the fairness doc-

trine—i.e., its threat of government intrusion into the edito-

rial process to ensure that broadcasters provide balanced

programming in connection with their airing of editorial

advertisements inhibits broadcasters from accepting such

advertisements.*° Thus, the Cullman doctrine can neither be

logically nor materially distinguished from the core of the

fairness doctrine itself.

30. For example, the fact that the Cullman doctrine

requires the broadcaster to broadcast unsponsored presenta-

tions of contrasting viewpoints if it cannot obtain sponsored

presentations of such viewpoints does not distinguish it from

its parent fairness doctrine. The presentation of one side of

any controversial issue of public importance is generally

financed either directly by the actual speaker, through an edi-

torial advertisement (a Cullman scenario), or by the broad-

caster, through the station’s commercial advertisement

revenues (a general fairness scenario). If the broadcaster can-

not obtain financing for the presentation of contrasting view-

points on a particular issue from the sale of another editorial

advertisement to another speaker, then the broadcaster must

finance the presentation of such viewpoints using its own

commercial advertisement revenues. In either event, the reg-

ulatory and economic burdens on the broadcaster are the

same; and nothing distinguishes the Cullman doctrine from

the fairness doctrine in this context.”

as part of their overall programming. As such, it is properly viewed as

the product of the fairness doctrine itself.

% See infra 48.

97 We note that the enforcement of the Cullman doctrine, in prac-

tice, results in the misimpression by many broadcasters that the doctrine

requires them to counter paid editorial advertisements with unpaid

advertisements if they are unable to obtain paid advertisements to pre-

sent opposing viewpoints. Although the doctrine only requires broad-

casters to present such viewpoints in their overall programming, many

broadcasters may believe that it is easier to defend themselves against

potential fairness doctrine complaints by demonstrating that they pre-

sented opposing viewpoints through other editorial advertisements.

(footnote continued)

35a

31. Finally, Cullman obligations arise, just as general fair-

ness obligations arise, only when the editorial advertisement

involves a controversial issue of public importance. Hence

just like other programming that does not involve such issues,

an editorial advertisement that does not involve a contro-

versial issue of public importance does not give rise to any

obligation to present contrasting viewpoints. Consequently, it

becomes clear that the Cullman doctrine derives its life blood

from the fairness doctrine, and its continued vitality cannot be

considered without a concomitant assessment of the under-

lying fairness doctrine. Therefore, we believe that, because

the constitutional and public interest infirmity of the Cullman

doctrine derives from the underlying fairness doctrine, it

would be arbitrary and capricious for us to consider the C ull-

man doctrine in this proceeding, without also addressing the

fairness doctrine that stands as its base.

32. In short, broadcasters are faced daily with editorial

decisions concerning what types of commercial or noncom-

mercial material on controversial public issues to present to

their listeners and viewers. The fundamental issue embodied

in this fairness doctrine litigation is the same as that pre-

Indeed, the record developed in the /985 Fairness Re indi

port indicates that,

a = = the advoc ates of those opposing viewpoints perpet-

me ng a by insisting that broadcasters air opposing view-

hrough , suc advertisements, threatening to complain to the

= Fv ee i broadcasters fail to do so. See 1985 Fairness Report, 102

- ty. at pen paren citing the effect of the Cullman doctrine

tabtooe _ issues as beverage deposit legislation and

In other contexts, the Supreme Court has specifically rej

Na y rejected as con-

St, ceaach on nendmeas the peapesition that government may req-

ya cher purpose of equalizing the voices of those with

a ~ resources. Buckley v. Valeo, 424 U.S. 1, 49 (1974).

his, wever, has been the practical effect of the policy here in ques-

Scat wate an nnaatested by the facts of this case. To respond to the paid

Ste ae En ee Ge Ghetay Association of Mow York, WTVH

pro vironmental Defense Fund and the Syracuse Peace

Council with 103 free spots to provide is :

ation Order, supra note 3, at x. contrasting views. Reconsider-

36a

sented in all other fairness doctrine cases: whether it is con-

stitutional and thereby sound public policy for a government

agency to oversee editorial decisions of broadcast journalists

concerning the broadcast of controversial issues of public

importance. Because the case before us is a product of the

fairness doctrine itself, and because it raises important policy

and constitutional issues common to all fairness doctrine lit-

igation, we do not befieve that the resolution of this pro-

ceeding turns on any specific facts that are unique to this

adjudication.

33. Nor do we believe that it would be appropriate, in pass-

ing on the constitutional and policy issues raised by our

enforcement of the fairness doctrine, to limit our considera-

tion of such issues to the one part of the fairness doctrine that

we determined had been violated in this case. The fairness

doctrine, although consisting of two parts,” is a unified doc-

trine; without both parts, the doctrine loses its identity. The

litigants and courts in this and, indeed, the Red Lion case

have all considered the validity of the doctrine as a whole,

and not as two separate policies. They have considered the

doctrine as such because neither part of the doctrine, standing

separately, constitutes the fairness doctrine, for both parts of

the doctrine are interdependent and integral to the overall reg-

ulatory scheme.” Consequently, if the constitutional infirmity

% «See supra note 2.

9 In 1949, the Commission caongred wo exteia tn a dingo exe

cept what had previously been a generic notion : neces-

sity for licensees to devote a reasonable percentage of their broadcast

time to the presentation of news and programs devoted to the consid-

eration and discussion of public issues of interest in the community by

ered. Conversely, simply requiring broadcasters, when covering con-

37a

of the doctrine arises from the enforcement of one of its parts,

we do not believe it appropriate to sever that part of the doc-

trine and to continue enforcing only the other part.'®

34. Yet even if we were to sever the two prongs of the doc-

trine and consider and invalidate only that prong which was

violated in this case, we would be left with something very

different from the fairness doctrine. The first part of the fair-

ness doctrine, by itself, although subject to a different regu-

latory focus and enforcement mechanism, may be compared

to the already existing obligation of broadcasters to cover

issues of importance to their communities.'®' Accordingly,

troversial issues of public importance, to provide reasonable coverage

of contrasting viewpoints (the second part) would not achieve the pur-

pose of the doctrine, because broadcasters could avoid this obligation

altogether by simply refusing to cover controversial issues of public

importance. Because each part of the doctrine gives life to the other, we

find the two parts to be inextricably linked to constitute what is currently

known as the fairness doctrine.

100 When considering this issue in the context of statutes, courts

look to the overall statutory scheme in determining whether the con-

stitutionally infirm portion of the statute may be severed from the

remaining portion. If the infirm portion is integral to the overall scheme.

then the entire statute must fall, regardless of whether the rest of the

Statute, taken separately, would still be constitutional. Compare EEOC

v. Allstate Ins. Co., 570 F. Supp. 1224 (S.D. Miss. 1983), appeal dism'd,

467 U.S. 1232 (1984) (legislative veto not severable from statutory

scheme), with INS v. Chadha, 462 U.S. 919 (1983) (legislative veto sev-

erable from statutory scheme). Similarly, we believe that if our enforce-

ment of the second prong of the fairness doctrine against Meredith was

unconstitutional, then the entire doctrine must fall, for the second prong.

as stated above, is integral to the overall regulatory scheme and cannot,

therefore, be severed.

101 See Report and Order in MM Docket No. 83-670, 98 FCC 2d

1076, 1091-92 (1984), recon. denied, 104 PCC 2d 358 (1986), remanded

on other grounds sub nom., Action for Children's Television v. FCC, No.

86-1425 (D.C. Cir. June 26, 1987) [Television Deregulation); Report and

Order in BC Docket No. 79-219, 84 FCC 2d 968, 977 (1981), recon.

denied, 87 FCC 2d 797 (1981), rev'd on other grounds sub nom., Office

of Communications of the United Church of Christ v. FCC, 707 F.2d

1413 (D.C. Cir. 1983) [Radio Deregulation). We note that, because such

obligations are different and do not lie within the fairness doctrine, they

are not at issue in this proceeding.

38a

retaining both obligations would be duplicative. There is thus

no need to sever the two parts of the existing fairness doctrine

in order to retain the obligation imposed by the first part.

35. In remanding this case to us, the Court of Appeals did

not indicate that we were obligated to consider, or even that

we should consider, the two parts of the doctrine separately,

and, as stated above, we do not believe that we are otherwise

obligated to do so. Our directive from the court was to con-

sider the constitutionality and propriety of the fairness doc-

trine as it is currently administered. That doctrine, both on its

face and as administered, contains two parts that, together,

constitute the fairness doctrine. Accordingly, we consider the

entire doctrine in this proceeding and decline to sever its parts

from one another.

B. CONSTITUTIONAL CONSIDERATIONS

UNDER RED LION

36. As more fully discussed below, the extraordinary tech-

nological advances that have been made in the electronic

media since the 1969 Red Lion decision, together with a con-

sideration of fundamental First Amendment principles, pro-

vide an ample basis for the Supreme Court to reconsider the

premise or approach of its decision in Red Lion. Nevertheless,

while we believe that the Court, after reexamining the issue,

may well be persuaded that the transformation in the com-

munications marketplace justifies alteration of the Red Lion

approach to broadcast regulation,’ we recognize that to date

the Court has determined that governmental regulation of

broadcast speech is subject to a standard of review under the

First Amendment that is more lenient than the standard gen-

erally applicable to the print media." Until the Supreme

102-1985 Fairness Report, 102 FCC 2d at 155.

03 Eg, FCC v. League of Women Voters of California, 468 U.S. at

377. See Red Lion Broadcasting Co. v. FCC, supra n.18. Indeed, in crit-

icizing the scarcity rationale employed by the Supreme Court in Red

Lion, Judge Bork, in TRAC v. FCC, noted that until the Court revisits

39a

Court reevaluates that determination, therefore, we shall eval-

uate the constitutionality of the fairness doctrine under the

standard enunciated in Red Lion and its progeny.'™

1. Red Lion Broadcasting Co. v. FCC

37. Eighteen years ago, the Supreme Court, in Red Lion

Broadcasting Co. v. FCC, upheld the constitutionality of the

fairness doctrine because it believed, at that time, that the

doctrine promoted “the paramount [F]irst [A]mendment rights

of viewers and listeners to receive ‘suitable access to. . .

ideas and experiences.’ ”'®* In that decision, the Court clearly

articulated a First Amendment standard for evaluating broad-

cast regulation which provided less protection to the speech

of broadcast journalists than that accorded to journalists in

other media. The Court held that, “[i]n view of the scarcity of

broadcast frequencies, the Government's role in allocating

those frequencies, and the legitimate claims of those unable

Red Lion, “neither (the Court of Appeals} nor the Commission i

seek new rationales to remedy the inadequacy of the y ene ~

area. TRAC v. FCC, 801 F.2d at 509; see also Branch v. FCC, No. 86-

1256, slip op. at 25-26 (D.C. Cir. July 21, 1987) (But unless the Court

itself were to overrule Red Lion, we remain bound by it.).

104

Some commenters, however, conte

Supreme Court in Red Lion determined that + ty dae aoe =

constitutional almost two decades ago mandates a finding by this Com-

mission that the doctrine is constitutional today. We disagree. If this

= so, the Court of Appeals would not have remanded this case for us

0 consider Meredith $ constitutional arguments, because our initial fail-

ure to consider them would not have been reversible error. Indeed. for

the reasons set forth below, we believe the rationale employed by the

Court in Red Lion compels the conclusion that the fairness doctrine con-

travenes the First Amendment today, when evaluated consistent with the

principles of Red Lion. Furthermore, the relationship between the appli-

cation of constitutional principles in this area and the advances in tech-

wetiorrentenanee ener iee en enn bemmny

samp due tabedaee. if consistency with current tech-

105 .

American Security Council Education Foundation v. FCC, 607

F.2d 438, 443- 44 (D.C. Cir. 1979), cert. denied, 444 U.S. 1013 (1980)

quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. at 389-90.

40a

i t government assistance to gain access to those fre-

pone expression of their views,” 10° the government

could require persons who were granted a license to operate

“as a proxy or fiduciary with obligations to present those

views and voices which are representative of his commu-

acterized as “an unusual order of First Amendment values,

it determined that governmental restrictions on the speech of

broadcasters could be justified if they furthered the interests

of listeners and viewers.

38. Although the Court in Red Lion articulated this stan-

dard for broadcast regulation, in several respects its holding

was narrow in scope. First, the Court, in explicit terms, dis-

claimed an intention of “approv[ing] every aspect of the fair-

ness doctrine.”'” Second, as the Court in Meredith v. FCC

noted, the Red Lion decision “was expressly premised on the

scarcity of broadcast frequencies ‘in the present state of com-

106 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395. The Court

stated that “because the frequencies reserved for public a

were limited in number, it was essential for the Government to te - “

applicants that they could not broadcast at all because re > —

for only a few.” Jd. at 388. We discuss the significance . a

more fully below. See infra 75-80. Although the Court's deci ~ me

Lion admittedly focused on the concept of spectrum or allocati ,

scarcity—the fact that there were more individuals who wanted —

cast than there were broadcast frequencies to award—the Court tee

been concerned about the actual number of information outlets availi e

in the electronic press. See League of Women Voters of eee pena

FCC, 468 U.S. at 376 n.11. To the extent that the Court is _—~ ~

about numerical scarcity in this medium, we believe, as a ully ‘

cussed below, that with the explosive growth in the number te) me sae

media outlets in the 18 years since Red Lion, there is no longer a

for this concern. See infra 67-71 & 74.

107 Jd. at 389.

108 Columbia Broadcasting System, Inc. v. Democratic National

Committee, 412 U.S. 94, 101 (1983).

109 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 396.

4la

mercially available technology’ as of 1969.”!!° Third, and

most importantly, the Court, in determining that the doctrine

satisfied the requirements of the First Amendment, relied

upon the Commission’s express representation that there was

no evidence that the doctrine “chills speech.” The Court

emphasized that if the fairness doctrine were found to inhibit

broadcasters from covering controversial issues of public

importance:

Such a result would indeed be a serious matter for .s

the purposes of the doctrine would be stifled. At this

point, however, as the Federal Communications Com-

mission has indicated, that possibility is at best specu-

lative. . . . The fairness doctrine in the past has had no

such overall effect.'"'

The Court in Red Lion expressly stated that it would recon-

sider its holding “if experience with the administration of [the

fairness doctrine] indicates that [it] ha[{s] the net effect of

reducing rather than enhancing the volume and quality of cov-

erage [of controversial issues of public importance].”!!?

2. Application of the Red Lion Standard

39. Under the standard enunciated by the Supreme Court

for assessing the constitutionality of broadcast regulation, “it

is the right of the viewers and listeners and not the broad-

casters which are paramount.”''’ This standard permits the

Meredith Corp. v. FCC, 809 F.2d at 867, quoting Red Lion

Broadcasting Co. v. FCC, 395 U.S. at 388. The Court in Red Lion con-

sidered, inter alia, the state of technology in 1969 in deciding to apply

a special, lenient constitutional standard to broadcast regulation. /d. at

396-400. It specifically recognized that “[t)he rapidity with which tech-

nological advances succeed one another. . . makes it unwise [for it] to

speculate on the future allocation of that space.” Jd. at 399. The tech-

nological advances in the electronic media since the Red Lion decision

are discussed infra at 67-71.

''! Red Lion Broadcasting Co. v. FCC, 395 US. at 393.

12 Id. at 391,

13 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390.

42a

government to regulate the speech of broadcasters in order to

promote the interest of the public in obtaining access to

diverse viewpoints.'’

40. In subsequent cases applying the Red Lion ory nn

the Supreme Court also recognized expressly that sees

casters have substantial rights under the First Amendment. ;

Indeed, the Court specified that in furthering the public's

interest in viewpoint diversity, it “must necessarily ey Z

large part upon the editorial initiative and judgment re) ~ e

broadcasters. . . .”"'® The Court has emphasized that broa -

casters are ‘entitled under the First Amendment to nigra

“the widest journalistic freedom consistent with their pub

{duties].”’”''’ In addition, it has held that governmenta

114 The Red Lion Court specified that: a

i i ublic to receive suitable access to social,

oon teen aaa and other ideas and experiences

which is crucial here. That right may not constitutionally be

abridged either by Congress or by the FCC.

Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390. en FCC v.

League of Women Voters of California, 468 U.S. at 377-78.

California, 468

1S See. e.g., FCC v. League of Women Voters of ,

US. at 378. Columbia Broadcasting System, Inc. v. Democratic National

Committee, 412 U.S. at 110.

116 FCC v. League of Women Voters of California, 468 U.S. at 378

(citation omitted).

uy v. League of Women Voters of California, 468 U.S. at 378,

quoting coe. Inc. WF oe, 453 U.S. 367, 395 (1981), quoting eoery

Broadcasting System, Inc. v. Democratic National Committee, - Stem

at 110. The Court has emphasized that broadcasters have tena veer

amount of editorial discretion under the First Amendment. .

in the context of a broadcast case, that: Ss

For better or worse, editing is what editors are for; and editing

is selection and choice of material. That pea tery

and broadcast—can and do abuse this power 1s beyonc eons

but. . . . the presence of these risks of abuse are taken in os

to preserve higher values. The presence of these a is —

ing new; the authors of the Bill of Rights accepted the re 4

that these risks were evils for which there was no accepta

remedy other than a spirit of moderation and a sense of respon-

43a

restrictions on broadcasters’ speech are permissible under the

First Amendment only in situations in which those restrictions

are “narrowly tailored to further a substantial governmental

interest, such as ensuring adequate and balanced coverage of

public issues.”''®

41. An assessment of the constitutionality of the fairness

doctrine under the standard established by Red Lion and its

progeny, therefore, “requires a critical examination of the

interests of the public and broadcasters.”"® We shall thus con-

sider the constitutionality of the fairness doctrine from the

perspective both of the public and the broadcast licensees. In

so doing, we shall examine the record developed in this case

and in the 1985 Fairness Report'® to determine, in accor-

dance with existing Supreme Court precedent, whether the

enforcement of the fairness doctrine (1) chills speech and

results in the net reduction of the presentation of controver-

sial issues of public concern’?! and (2) excessively infringes

sibility—and civility—on the part of those who exercise the

guaranteed freedoms of expression.

Columbia Broadcasting System, Inc. v. Democratic National Com-

mittee, 412 U.S. at 124-25.

Ns FCC y. League of Women Voters of California, 468 U.S. at 380

(citation omitted). We note that this standard appears similar to the one

employed in evaluating time, place and manner restrictions on the

expression of non-electronic speech. See, e.g., Clark v. Community for

Creative Nonviolence, 468 U.S. 288, 293 (1984); City of Renton v. Play-

time Theatres, 106 S. Ct. at 928. In general, the Court utilizes the lenient

“time, place and manner” standard only in situations involving content-

neutral regulations. E.g., Clark v. Community for Creative Nonviolence,

468 U.S. at 293. In League of Women Voters, the Court used this stan-

dard in evaluating a statute regulating speech on broadcast frequencies

that was not content-neutral, presumably because of a lesser First

Amendment right afforded broadcasters.

119 FCC v. League of Women Voters of California, 468 U.S. at 381.

'20 We hereby incorporate the findings in the 1985 Fairness Report

into this record and, as more fully explained below, reaffirm the findings

and conclusions contained in that Report.

121 See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 391, 393:

FCC v. League of Women Voters of California, 468 U.S. at 378 n.12.

44a

on the editorial discretion of broadcast journalists and

involves unnecessary government intervention to the romeo

that it is no longer narrowly tailored to meet its objective.

(a) Chilling Effect of the Doctrine

42. In the 1985 Fairness Report, the Commission evalu-

ated the efficacy of the fairness doctrine in achieving its —e

ulatory objective. Based upon the compelling evidence 0

record, the Commission determined that the fairness doctrine,

in operation, thwarts the purpose that it is designed to _

mote. Instead of enhancing the discussion of onc or

issues of public importance, the Commission found that the

fairness doctrine, in operation, “chills” speech.

43. The Commission documented that the fairness doctrine

provides broadcasters with a powerful incentive not to air

controversial issue programming above that minimal ee

required by the first part of the doctrine.’ Each time 4 broa -

caster presents what may be construed as a controversial issue

of public importance, it runs the risk of a complaint —

filed, resulting in litigation and penalties, including loss o

license. This risk still exists even if a broadcaster has met its

obligations by airing contrasting viewpoints, because the pro-

cess necessarily involves a vague standard, the application

and meaning of which is hard to predict. Therefore, by oo

iting the amount of controversial issue Programming to that

required by the first prong (i.e., its obligation to cover con-

troversial issues of vital importance to the community), a

licensee is able to lessen the substantial burdens associated

with the second prong of the doctrine (i.e., its obligation to

present contrasting viewpoints) while conforming to the strict

letter of its regulatory obligations. The licensee, acne

with its fairness doctrine obligations, may forego coverage 0

122 See FCC v. League of Women Voters of California, 468 U.S. at

378, 380.

123. 1985 Fairness Report, 102 FCC 2d at 161.

45a

other issues that, although important, do not rise to the level

of being vital.

44. As the Commission demonstrated, the incentives

involved in limiting the amount of controversial issue pro-

gramming are substantial. A broadcaster may seek to lessen

the possibility that an opponent may challenge the method in

which it provided “balance” in a renewal proceeding. If it

provides one side of a controversial issue, it may wish to

avoid either a formal Commission determination that it vio-

lated agency policy or the financial costs of providing respon-

sive programming. More important, however, even if it

intends to or believes that it has presented balanced coverage

of a controversial issue, it may be inhibited by the expenses

of being second-guessed by the government in defending a

fairness doctrine complaint at the Commission, and if the case

is litigated in court, the costs of an appeal. Further, in view of

its dependence upon the goodwill of its audience, a licensee

may seek to avoid the possible tarnish to its reputation that

even an allegation that it violated the governmental policy of

“balanced” programming could entail.

45. Furthermore, the Commission determined that the doc-

trine inherently provides incentives that are more favorable to

the expression of orthodox and well-established Opinion with

respect to controversial issues than to less established view-

points.'** The Commission pointed out that a number of

broadcasters who were denied or threatened with the denial of

renewal of their licenses on fairness grounds had provided

controversial issue programming far in excess of the typical

broadcaster. Yet these broadcasters espoused provocative

opinions that many found to be abhorrent and extreme,

thereby increasing the probability that these broadcasters

124 1985 Fairness Report, 102 FCC 2d at 157-69.

125 Id. at 188-90.

126 1985 Fairness Report, 102 FCC 24 at 189.

46a

mission consequently expressed concern that the doctrine, in

operation, may have penalized or impeded the expression of

unorthodox or unpopular opinion,’*’ depriving the public of

debates on issues of public opinion that are “uninhibited,

robust, and wide-open.”'** The doctrine’s encouragement to

cover only major or significant viewpoints, with which much

of the public will be familiar, inhibits First Amendment goals

of ensuring that the public has access to innovative and less

popular viewpoints.

46. As noted above, these various incentives are not merely

speculative. The record compiled in the fairness inquiry

revealed over 60 reported instances in which the fairness doc-

trine inhibited broadcasters’ coverage of controversial issues.

Although some have sought to disparage or discount the sig-

nificance of some of the specific examples cited, we have

carefully reviewed these criticisms and contines to believe

that those specific instances of broadcasters conduct wore

broadly illustrative of a prevalent reaction to the doctrine

and that the record from the inquiry overwhelmingly demon-

strated that broadcasters act upon those incentives and limit

the amount of controversial issue programming presented on

the airwaves.

127 Jd. at 188.

128 New York Times v. Sullivan, 376 U.S. at 270. It should be noted

that compliance with the fairness doctrine may involve the a

of multiple opposing viewpoints. The notion that yy echoes pee

sides to any controversial issue of public importance is simplisti ‘

in most cases, unrealistic.

129 we noted in the 1985 Fairness Report, 102 FCC 2d at 181,

a sadn admission that it is inhibited from covering ee cowetent

sial issues of public importance is, to some extent, an admission ao.

interest, because both journalistic standards and (in certain we ° oe

ernment regulation require such coverage. Therefore, we be rw =

there are many more broadcasters who have been chilled, but ave -

so openly admitted, than the number of those who admitted so in

1985 Fairness Report.

47a

47. The Commission demonstrated in the / 985 Fairness

Report that broadcasters—from network television anchors to

those in the smallest radio stations—recounted that the fear of

governmental sanction resulting from the doctrine creates a

climate of timidity and fear, which deters the coverage of con-

troversial issue programming.'*° The record contained numer-

ous instances in which the broadcasters decided that it was

“safer” to avoid broadcasting specific controversial issue pro-

gramming, such as series prepared for local news programs,

than to incur the potentially burdensome administrative, legal,

personnel, and reputational costs of either complying with the

doctrine or defending their editorial decisions to govern-

mental authorities. Indeed, in the 1/985 Fairness Report, the

Commission gave specific examples of instances in which

broadcasters declined to air programming on such imrortant

controversial issues such as the nuclear arms race, religious

cults, municipal salaries, and other significant matters of pub-

lic concern.'*' In each instance, the broadcaster identified the

fairness doctrine as the cause for its decision.

48. The record in the fairness inquiry demonstrated that

this self-censorship is not limited to individual programs. In

order to avoid fairness doctrine burdens, the Commission

found that stations have adopted company “policies” which

have the direct effect of diminishing the amount of contro-

versial material that is presented to the public on broadcast

stations. For example, some stations refuse to present edito-

rials; other stations will not accept political advertisements'*2:

still others decline to air public issue (or editorial) advertis-

ing; and others have policies to decline acceptance of nation-

ed Id. at 171.

131 Id. at 172-74.

132 The political advertisements referred to by the Commission in

the 1985 Fairness Report are those that would not be subject to the rea-

sonable access requirements of 47 U.S.C. § 312(a)(7) and could there-

fore be declined for broadcast by the licensee. See generally id. at

174-77, and supra note 91.

48a

ally produced programming that discusses controversial sub-

jects or to have their news staffs avoid controversial issues as

a matter of routine.'*? The Commission concluded, therefore,

that the doctrine “inhibits the presentation of controversial

issues of public importance to the detriment of the public and

in degradation of the editorial prerogatives of broadcast jour-

nalists.”'*4

49. Further, we believe that enforcement actions such as

the one in this proceeding provide substantial disincentives to

broadcasters to cover controversial issues of importance in

their community. As a direct result of the Commission sec-

ond-guessing the editorial discretion of Meredith's station

WTVH in its coverage of an important, controversial issue,

Station WTVH became embroiled in a burdensome, regula-

tory quagmire. Even though it has, under today’s decision,

ultimately prevailed in this adjudication, the station has

incurred substantial litigation expenses associated with the

initial adjudication, the reconsideration proceeding, the case

on appeal and the subsequent remand. Its reputation has been

tarnished for nearly three years by a formal adjudication by

this Commission that it was unfair in its programming and

somehow did not live up to professional journalistic stan-

dards. In addition, its editorial judgment as a broadcast jour-

nalist has been subject to question by government authorities.

Based upon this experience, we believe that, if we were to

continue to impose the doctrine, some broadcasters would

continue to seek to avoid the substantial burdens associated

with the doctrine by limiting their coverage of controversial

issues of public importance.

133 Jd. at 169-80. For example, in the Syracuse market from which

the instant case arises, another commercial television station, WSTM,

had a “policy” never to accept advocacy advertising. See Syracuse Peace

Council Complaint, Exh. 2 (filed Dec. 12, 1983) (Letter from Corinne

Kinane to Thomas Slaughter at 1-2).

134 1985 Fairness Report, 102 FCC 2d at 147.

49a

50. Several commenters in this adjudication

Commission's determination in 1985 = the ee ro

in operation inhibits the expression of controversial issues of

public importance. The arguments presented by these parties,

however, are the same contentions which already have been

carefully considered and rejected by the Commission in its

y 985 Fairness Report.'* Therefore, for the reasons set forth

in that Report, we do not find them persuasive, and we reaf-

51. Fisher Broadcasting Inc. was the sole broadcaster in

this proceeding to assert to us that the fairness doctrine has

not inhibited its stations’ coverage of controversial issues of

public importance. '% In the 1985 inquiry, Westinghouse

Broadcasting & Cable Co. was the sole broadcaster to make

a similar claim.'*’ We do not believe, however, that Statements

by these or other licensees demonstrate generally an absence

of a “chilling effect” in the broadcasting industry. As we

stated in the 1/985 Fairness Report: |

[W]e do not believe that the isolated representations of

some broadcasters to the effect that the doctrine does not

have any effect on the type, frequency or duration of the

controversial viewpoints they air are probative of an

absence of chilling effect within the industry as a whole:

the fact that some broadcasters may not be inhibited in

the presentation of controversial issues of public impor-

tance does not prove that broadcasters i

similarly uninhibited.!™ = CPOE ans

The record in that Report demonstrates that many broad-

casters are in fact inhibited by fairness doctrine burdens from

135 Id. at 167-68, 180-87.

136 Fisher Comments at 3.

137 ,

1985 Fairness Report, 102 PCC 24 at 181-82.

98 Id. at 182.

50a

covering controversial issues of public importance. No broad-

caster indicated to us that its coverage of controversial issues

has increased as a result of the fairness doctrine, and absent

such evidence to offset the numerous instances of chill that

we have identified, we can only conclude that the overall net

effect of the doctrine is to reduce the coverage of controver-

sial issues of public importance, in contravention of the stan-

dard announced in Red Lion.'”

(b) The Extent and Necessity of Government

Intervention into Editorial Discretion

52. As explained above, the Supreme Court has held that

restrictions on the content of broadcasters’ speech must be

narrowly tailored to achieve a substantial government inter-

est in order to pass constitutional muster.'” As part of an

analysis of such a requirement, we look to the 1985 Fairness

Report, in which the Commission examined the appropriate

role of government in regulating the expression of opinion.

Historically, the Commission has taken the position that the

agency had an affirmative obligation, derived from the First

Amendment, to oversee the content of programming through

enforcement of the fairness doctrine in order to ensure the

availability of diverse viewpoints to the public.'*’ After care-

139 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 391. Certain

parties, such as Safe Energy Communication Council, set forth case

studies in support of their view that the fairness doctrine promotes the

discussion of controversial issues of public importance. In light of the

substantial evidence contained in the 1985 Fairness Report, however, we

remain convinced that the net effect of the doctrine is to inhibit the

expression of opinion on important public issues.

140 FCC v. League of Women Voters of California, 468 U.S. at 380.

41 For example, in what it characterized as “a different approach

to the First Amendment,” the Commission justified the fairness doctrine

in its 1974 Fairness Report, by taking the position that the agency had

an affirmative obligation under the Constitution to impose restrictions

on the speech of broadcasters in order to promote “balanced” contro-

versial issue programming. 48 FCC 2d at 3. Even at the time of the 1974

Fairness Report, however, the Commission recognized the anomaly in

Sla

ful reflection, however, the Commission, with respect to the

fairness doctrine, repudiated the notion that it was proper for

a governmental agency to intervene actively in the market-

place of ideas." The Commission found that the enforcement

of the doctrine requires the “minute and subjective scrutiny of

program content,”'** which perilously treads upon the edito-

rial prerogatives of broadcast journalists. The Commission

further found that in administering the doctrine it is forced to

undertake the dangerous task of evaluating particular view-

points.'* The fairness doctrine thus indisputably represents an

justifying governmental scrutiny of speech allegedly to “promote” Fi

Amendment values. See supra 83-94. and 7

“S (See 1985 Fairness Report, 102 F.2d at 224-25. The Supreme

Court has unambiguously repudiated any notion that the First Amend-

ment affirmatively requires governmental intervention to ensure diver-

sity in the marketplace of ideas. In Columbia Broadcasting System, Inc

v. Democratic National Committee, 412 U.S. at 126-30. the Court

reversed a lower appellate court decision which held that there was a

constitutionally mandated “right of access” on the part of individual

members of the public to have “some opportunity to take the initiative

and editorial control into their own hands on the broadcast media.” Busi.

ness Executives ' Moves for Vietnam Peace v. FCC, 450 F.2d 642 656

(D.C. Cir. 1971), rev'd sub nom. Columbia Broadcasting System, Inc v

Democratic National Committee, 412 U.S. 94 (1973). In deciding that

members of the public had no constitutional right to place editorial

advertisements, the Supreme Court emphasized that broadcasters have

editorial discretion to determine the material which is to be covered.

a Broadcasting System, Inc. v. Democratic National Committee,

412 US. at 124-26. Further, noting the “difficult problems involved in

implementing . ; - a right of access,” the Court recognized that a “prob-

lem of critical importance to broadcast regulation and the First Amend-

ment [is] the risk of an enlargement of government control over the

content of broadcast discussion of public issues.” /d. at 126. See Pub-

lic Interest Research Group v. FCC, $22 F.2d 1060, 1067 (D.C. Cir

1975), cert. denied, 424 U.S. 965 (1976) (court of appeals rejected con.

tention that the First Amendment mandates enforcement of the fairness

doctrine); see also TRAC v. FCC, 801 F.2d at 518.

43-1985 Fairness Report, 102 FCC 2d at 191.

144

Judge Bazelon recognized the danger in such a task

stated: “Truth and fairness have a too uncertain quality to beeen bo

government to define them. . . . [I)n order to determine what the ‘other

52a

intrusion into a broadcaster's editorial discretion, both in its

enforcement and in the threat of enforcement. It requires the

government to second-guess broadcasters’ judgment on oe

issues they cover, as well as on the manner and balance °

coverage. The penalties for noncompliance range from being

required to provide free air time, under some Seng

to providing contrasting viewpoints, in others, to loss 0

license, in extreme cases. Even though an individual ae

might not lead to license revocation, the court in Meredit

noted that the mere finding of a violation “has its own coer-

cive impact.”'*

53. In this regard, the Commissiou noted that, wader the

fairness doctrine, a broadcaster is only required to air “major

viewpoints and shades of opinion” to fulfill its balanced Lar

gramming obligation under the second part of the doctrine.

In administering the fairness doctrine, therefore, the Com-

mission is obliged to differentiate between “significant sont

points which warrant presentation to fulfill the balance

programming obligation and those viewpoints that are not

deemed “major” and thus need not be presented. The a

forces the government to make subjective and vague value

judgments among various opinions on controversial issues to

determine whether a licensee has complied with its regulatory

obligations.'*’

54. In addition, the Commission expressed concern that the

fairness doctrine provides a dangerous vehicle—which had

been exercised in the past by unscrupulous officials—for the

intimidation of broadcasters who criticize governmental pol-

jecti inst which to

ide’ i has to have an objective concept of truth against

compare the challenged speech. And who in this country isin possession

of this objective concept of truth?” Bazelon, “FCC oo °

Telecommunications Press,” 75 Duke L.J. 213, 236-37 (1975).

145 Meredith Corp. v. FCC, 809 F.2d at 873.

146 =: 1.974 Fairness Report, supra note 2, at 15.

147 See, e.g., Coates v. Cincinnati, 402 U.S. 611 (1970); Cohen v.

California, 403 U.S. 15 (1970).

53a

icy.'** It concluded that the inherently subjective evaluation

of program content by the Commission in administering the

doctrine contravenes fundamental First Amendment princi-

ples.'*° We reaffirm these determinations and find that

enforcement of the fairness doctrine necessarily injects the

government into the editorial process of broadcast journalists.

55. In further analyzing whether the fairness doctrine is

narrowly tailored to achieve a substantial government inter-

est, we look again to our evaluation in the 1/985 Fairness

Report of whether this type of government regulation is in

fact necessary to ensure the availability of diverse sources of

information and viewpoints to the public.’ In that Report,

the Commission undertook a comprehensive review of the

information outlets currently available to the public. This

review, as discussed in more detail below,'*' revealed an

explosive growth in both the number and types of such outlets

in every market since the 1969 Red Lion decision. And this

trend has continued unabated since 1985. For example, 96%

of the public now has access to five or more television sta-

tions. Currently, listeners in the top 25 markets have access to

an average of 59 radio stations, while those in even the small-

est markets have access to an average of six radio stations. In

148

1985 Fairness Report, 102 FCC 2d at 192-94.

In the 1985 Fairness Report, the Commission determined that

the administration of the doctrine requires the agency to make detailed

determinations which are necessarily subjective. See, e.g., id. at 183

n.147.

150

149

Although the standard announced in League of Women Voters

only requires the Commission to determine whether the doctrine is nar-

rowly tailored—not necessary—to achieve a substantial government

interest, our report in 1985 went so far as to determine that the doctrine

was not necessary to achieve its purpose. Having determined that the

doctrine is not necessary to serve a substantial government interest, then

its intrusive means into the editorial process cannot possibly be narrowly

tailored.

‘8! See infra 67-71. At this point in the discussion, we note that the

increase in the number of media outlets available to the public not only

discredits the claim of numerical scarcity in the electronic media, but

54a

contrast to that, only 125 cities have two or more daily news-

papers published locally. Nationwide, there are 1315 televi-

sion and 10,128 radio stations, while recent evidence

indicates that there are 1657 daily newspapers. The number of

television stations represents a 54% increase since the Red

Lion decision, while the number of radio stations represents

a 57% increase. Not only has the number of television and

radio stations increased the public’s access to a multiplicity

of media outlets since 1969, but the advent and increased

availability of such other technologies as cable and satellite

television services have dramatically enhanced that access. As

a result of its 1985 review, the Commission determined that

“the interest of the public in viewpoint diversity is fully

served by the multiplicity of voices in the marketplace

today”'®? and that the growth in both radio and television

broadcasting alone provided “a reasonable assurance that a

sufficient diversity of opinion on controversial issues of pub-

lic importance [would] be provided in each broadcast mar-

ket.”'®? It concluded, therefore, and we continue to believe,

that government regulation such as the fairness doctrine is not

necessary to ensure that the public has access to the market-

place of ideas.

56. None of the commenters in this proceeding has chal-

lenged the underlying data contained in the 1985 Fairness

Report demonstrating the significant increase in the number

and types of information services. In its Comments, however,

the ACLU attempts to discount the importance of the Com-

mission’s findings. For example, disputing the significance of

the substantial growth in the number of television stations, the

ACLU argues that most of this increase has been in UHF

independent stations which, it speculates, may not contribute

to the diversity of viewpoints.'* We disagree. The ACLU has

also demonstrates that the doctrine is no longer narrowly tailored to

achieve its objective.

152-1985 Fairness Report, 102 FCC 2d at 147.

153 Jd. at 208.

184 = ACLU Comments at 8-11.

5Sa

provided no meaningful basis for us to reconsider our con-

clusion that independent stations can contribute—and do con-

tribute—significantly to the marketplace of ideas. Therefore,

we continue to believe that the contributions of UHF stations

must be considered in any meaningful assessment of the

information services marketplace. '%5

57. In its Comments, the ACLU also attempts to downplay

the importance of our finding that the number of signals

received by individual television viewers has increased sub-

stantially. In making its argument, the ACLU does not ques-

tion the existence of the substantial growth in the number of

Signals available to individual television households.'%

Rather, it argues that not all of the signals of these stations

originate in the viewers’ community of license.'*’ However,

as we stated in our /985 Fairness Report, in assessing view-

point diversity in the context of the fairness doctrine, “the rel-

evant inquiry is not what stations are licensed to a community,

but rather what broadcast signals [an individual] can actually

receive.”'** Viewers can obtain information on controversial

issues of public importance from stations which they can

receive whether or not the signal happens to originate in their

community.'* Similarly, citing the 1985 Fairness Report, the

1S5

Citing newspaper and magazine articles, the ACLU contends

that some of these stations are “struggling for economic survival.” /d.

at 8-9. As we stated in our /985 Fairness Report, however, we believe

that “the growth of this service—113 percent since Red Lion—is evi-

dence of its economic viability.” 102 FCC 2d at 206. While every station

may not be successful, we do not believe that any persuasive evidence

has been proffered to justify a conclusion that electronic media choices

will not continue to increase or that they will not continue to contribute

to the diversity of viewpoints.

186 Indeed, it specifically cites the Commission's finding that 96

percent of all television households are capable of receiving five or more

off-the-air television signals. ACLU Comments at 9.

57 Jd. at 9.

198 1985 Fairness Report, 102 FCC 2d at 219 (citation omitted).

In addition, we reject ACLU’s contention that there may be no

increase in viewpoint diversity from the increase in the number of tele-

159

56a

ACLU acknowledges that the number of radio stations has

increased dramatically.'® It speculates, however, that “despite

the dramatic growth of radio over the past three decades,

viewpoint diversity on controversial issues of public impor-

tance may not have changed. . . .”'*' Specifically, it argues

that most of the increase is in FM stations which, in its view,

carry less controversial issue programming than their AM

counterparts, and that public affairs programming on radio

generally has decreased.’ We are not persuaded by these

speculative contentions. To the contrary, we remain convinced

that the dramatic growth in the number of both radio stations

and television stations has in fact increased the amount of

information, as well as the diversity of viewpoints, available

to the public in both large and small broadcast markets.'® We

vision stations because the members of the public may choose not to lis-

ten or to view the controversial opinions that are broadcast. See ACLU

Comments at 10. The Commission cannot force the dissemination of

information on unwilling listeners and viewers. Our concern is properly

limited to the availability of information sources, rather than whether a

particular individual may choose to receive information from them.

160 Jd. at 12. Indeed, it recognizes that the number of radio stations

has increased by “280 percent since the Commission's 1949 Fairness

Report; 48 percent since the Supreme Court's 1969 Red Lion decision;

and 30 percent since the Commission’s 1974 Fairness Report.” Id. at 12

(citation omitted).

161 Jd. at 15 (emphasis added).

162 Jd. at 10-14.

163 ACLU asserts that the “average” person listens to only a few

stations. Because most radio listeners actually hear only the viewpoints

which are aired on a few stations, ACLU suggests that the growth in the

number of stations does not equate with an increase in viewpoint diver-

sity. Id. at 14. It also states that “people primarily rely today on tele-

vision for news and public affairs, and increasingly consider radio to be

largely an entertainment medium.” /d. at 15. We believe, however, that

the relevant criterion is the available information rather than the actual

listening patterns of the public. Furthermore, the number of radio sta-

tions providing an all-news/public affairs format, news breaks or top of

the hour news spots leads us to conclude that listeners do not rely on

radio only for its entertainment programming.

57a

therefore reaffirm our determination in the 1985 Fairness

Report that the fairness doctrine is not necessary in any mar-

ket to ensure that the public has access to diverse viewpoints

from today’s media outlets. Its intrusive means of interfering

with broadcasters’ editorial discretion, therefore, can no

longer be characterized as narrowly tailored to meet a sub-

stantial government interest.

58. As noted above, under the standard of review set forth

in Red Lion, a governmental regulation such as the fairness

doctrine is constitutional if it furthers the paramount interest

of the public in receiving diverse and antagonistic sources of

information. Under Red Lion, however, the constitutionality

of the fairness doctrine becomes questionable if the chilling

effect resulting from the doctrine thwarts its intended pur-

pose. Applying this precedent, we conclude that the doctrine

can no longer be sustained.

39. In the 1985 Fairness Report, we evaluated whether the

fairness doctrine achieved its purpose of promoting access to

diverse viewpoints. After compiling a comprehensive record

we concluded that, in operation, the fairness doctrine actually

thwarts the purpose which it is designed to achieve. We found

that the doctrine inhibits broadcasters, on balance, from cov-

ering controversial issues of public importance. As a result

instead of promoting access to diverse opinions on contro-

versial issues of public importance, the actual effect of the

doctrine is to “overall lessen{ } the flow of diverse viewpoints

to the public.”'™ Because the net effect of the fairness doc-

trine is to reduce rather than enhance the public’s access to

viewpoint diversity, it affirmatively disserves the First

Amendment interests of the public. This fact alone demon-

104-1985 Fairness Report, 102 FCC 2d at 171.

58a

strates that the fairness doctrine is unconstitutional under the

standard of review established in Red Lion.'*

60. Furthermore, almost two decades of Commission expe-

rience in enforcing the fairness doctrine since Red Lion cor

vince us that the doctrine is also constitutionally infirm

because it is not narrowly tailored to achieve a substantial

government interest. Because the fairness doctrine imposes

substantial burdens upon the editorial discretion of broadcast

journalists and, because technological developments have ren-

dered the doctrine unnecessary to ensure the public's access

to viewpoint diversity, it is no longer narrowly tailored to

meet a substantial government interest and therefore violates

the standard set forth in League of Women Voters.’ The doc-

trine requires the government to second-guess broadcasters

judgment on such sensitive and subjective matters as the

“controversiality” and “public importance” of a particular

issue, whether a particular viewpoint is “major,” and the “bal-

ance” of a particular presentation. The resultant overbreadth

of the government’s inquiry into these matters is demon-

strated by the chill in speech that we have identified. The doc-

trine exacts a penalty, both from broadcasters and, ultimately,

from the public, for the expression of opinion in the elec-

tronic press. As a result, broadcasters are denied the editorial

discretion accorded to other journalists, and the public is

deprived of a more vigorous marketplace of ideas, unen-

cumbered by governmental regulation.

165 The Court expressly stated that:

a , inn

were it to be shown by the Commission that the fairness doc-

trine has “the net effect of reducing rather than enhancing

speech, we would then be forced to reconsider the constitutional

basis of our decision in that case.

i i 8 U.S. at 378 n.12,

FCC v. League of Women Voters of California, 46

eaten Red Lion Broadcasting Co. v. FCC, 395 U.S. at 393 (emphasis

added).

166 FCC v. League of Women Voters of California, 460 U.S. at 380.

59a

61. In sum, the fairness doctrine in operation disserves

both the public’s right to diverse sources of information and

the broadcaster’s interest in free expression. Its chilling effect

thwarts its intended purpose, and it results in excessive and

unnecessary government interven

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