# Amicus Curiae Brief — Reno v. American Civil Liberties Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0021%3A26 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 521 U.S. 844 ## Text — \ No. 96-511 - — vs RLuLE D IN THE EFR 20 gat Supreme Court of the Hniteh States _ C C yo OCTOBER TERM, 1996 >_> JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al., Appellants, aa 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) A “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 il 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 iv 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, 2 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). 3 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. 4 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 i le he ly ORI MA A eT gt A MH 5 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 6 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 7 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, 9 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). 10 “ 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 ll 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 12 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 13 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 (c) Pacifica has been the subject of such sustained criticism that it 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”). 14 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 . 2a 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 -- —_ 4a 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). 4 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). Sa 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- © Inquiry Into Section 73.1910 of the Commission's Rules and 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. 6a 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. 7a 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) 8a 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. = 9a 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 4a 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. 51 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. 70 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- © Chisholm v. FCC, 538 F.2d at 364-65. 7 $ U.S.C. 553 (1982), 78 ) 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. 83 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. 95 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- nity.”'©’ The Court thus described what it subsequently oes. 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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0021%3A26. Public record. Not legal advice.