Appendix — Robinson v. Federal Communications Commission

1A

APPENDIX —

UNITED STATES COURT’ OF APPEALS

' . FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17587

E. G. Rn. JR., t @ PALMETTO BROADCASTING

COMPANY (WDKD),

Appellant,

° Vv. ?

FEDERAL COMMUNICATIONS COMMISSION,

A ppelice,

Appeal from the Federal Communications Commission

Decided March 19, 1964

Mr. Vernon L. Wilkinson, with whom Mr. James A.

McKenna, Jr., was on the brief, for appellant. Mr. Harry

J. Daly and Mrs. Lenore G. Ehrig also entered appear-

ances for appellant.

Mr. Daniel R. Ohlbaum; Associate General Counsel,

Federal Communications Commission, with whom Mr.

Mar D. Paglin, General Counsel, and Mrs. Ruth V. Reel,

Counsel, Federal Communications Commission, were: on

the brief, for appellee. |

Mr. Harry M. Plotkin for American Civil Liberties

Union, as amicus curiae.

Before. BAZELON, Chief Judge, and — K. MILLER

and WASHINGTON, Circuit Judges.

PER CURIAM: Edward G. Robinson, Jr., challenges the |

Federal Communications Commission’s denial of his ap-

2A

plications for renewal of the license of radio station

WDKD, located in Kingstree, South Carolina, and for a

construction permit to change the station’s antenna sys-

tem.

These are the relevant circumstances. On May 1].

1960, the Commission sent Robinson the following letter:

This is with reference to certain complaints re-,

ceived by the Commission concerning certain pro-

gram- material broadcast by your station, with par-

ticular reference to the Charlie Walker programs.

It is alleged in substance that said programs are

‘vulgar and suggestive, and are suspectible of double

meanings with. indecent connotations. The tape re-

cordings.of some of your programs are in the pos-

session of the Commission.

It is the practice of the Commission to associate

complaints with the files of the stations involved and

afford the licensees an opportunity to submit a state

ment with respect thereto. Accordingly, this matter

is being brought to your attention. :

In light of the foregoing, it is requested that a

statement be submitted by you with respect to this

matter within 15. days from the date of this letter.

On June 10, after the Commission ullowed Robinson's

counsel to hear certain of the tape recordings, Robinson

replied to the Commission, in pertinent part:

. . These ‘statements made by my empiovee,

Charlié Walker, were not known to me, and I cannot

help but agree that they are suggestive and, in. some

cases, of a vulgar nature. As a result of this infor-

mation and in line with my avowed policy of main-

_taining a clean and decerit Radio- Station, I have un-

‘conditionally released Charlie Walker from my em--

ploy as of the date of this letter.

I want to stress to you the fact that ! was not

acquainted with the nature of the statements made

3A.

. oy Charlie*Walker and the show on: the air at my

~- Radio Station, and I can assure you that the only

- accusation which could be leveled at me is that per-_

haps I should have followed these matters more

closely and should have known exactly what was

going on... ._ =

Thereafter, the Commission designated the matter fer

hearing upon the following issues : . :

1. To determine whether in its written cr oral

statements to the Commission with respect to the

alive matters, the licensee misrepresented facts to

the Con.nission ang or was lacking in candor; * _

z. To determine whether the licensee maintained

_ adequate control or supervision of programming ma-

terial broadeast over his station during the period of

his most recent license renewal; ,

3. To détermine whether the licensee permitting

programming materia! to be broadcast over Station

WDKD on the Charlie Walker show, particularly dur-

ing the period between January J, 1960 and April 30.

1960, which program material was coarse, vulgar,

* suggestive. and susceptible of indecent, double mean-

ing;

4. To determine the manner in which the program-

‘ming broadcast by*the licensee during the period of

his most recétt ficense renewal has met the needs of

.. the areas and populations served by the station;

_ 5. To determine whether, in light of the evidence

adduced with respect to the foregoing issues, the 1i-

censee possess the fequisite qualifications to be a

licensee of the Commission ;

6. To determine whether, im light of the evidence

adduced with respect to the foregoing issues, a grant...

¢ of the above-captioned applications would serve the

public interest, convenience or necessity. ,

‘At hearings held in Kingstree on May 31, June 1, 2,

and 5, 1961, Robinson testified that with a few insignifi-

4A

cant exceptions he had ‘never heard Walker broadcost

objectionable material, and emphasized that he had never

heard complaints about such material. Numerous other

witnesses, however, testified they had made such com-

plaints to Robinson.

On the basis of his findings adverse to Robinson on

thé first four issues, the Examiner concluded that Robin-

son did not possess the requisite qualifictions to be a

licensee of the Commission, and that a grant of the appli-

cations would not serve the pubiie interest, convenience.

or necessity. He proposed the applications be denied.

‘On appeal the Commission affirmed the Examiner's:

findings but modifjed his concRisions of law. Thus. al-

though the Commission in answering issues Nos.°5 and 6

in the negative found against Robirison on all of the first

four issues; it held that the finding on either issue No. 1

or No. 3, standing alone, would support denial. In regard

to issue No. 1, the Commission said, ““We find that in the

circumstances of this case, the licensee’s misrepresenta-

tions and false. statements, in and of- themselves, con-

stitute grounds for denial of WDKD’s application for re-

‘newail of license.” We agree that this provides sufficient

“support for the Commission’s decision. Accordingly we

reach no other questions.

In determining whether the grant of an application for

license renewal will serve the “public interest. eenveni-

ence, and necessity,” 47 U.S.C. § 307(d), the Commission

has a duty to consider the performance of the applicant

in meeting the needs of the community. In discharging

this duty in the present easé. the Commission properly

sought information concerning the applicant’s broadcast

material which had been the subject of ..complaints re

ceived by the Commission. Robinsor’s representations to

the Commission that he lacked knowledge of the situation

were contradicted by many witnesses. The record-amply

supports the Examiner’s action in crediting the opposing

o* -

.

.

5A

witnesses and refusing to credit Robinson, and in con-

eluding as a result that Robinson was guilty of misrepre-

sentations. ak

We intimate no views on whether the Commission could

have denied ‘the applications if Robinson had been truth-

ful. “The fact of concealment may be more significant

than the facts concealed. The willingness to deceive a

regulatory body may be disclosed by immaterial and use-

less deceptions as well as by material and persuasive

ones.” Federal C ommunications ‘Comm'n vy. WOKO, 329

U.S. 223, 227 (1946). We hold only that Robinson’s will-

ingness to decieve the Commission justified its conclusion

that he did not possess the requisite qualifications to be a

licensee. and that a grant of his applications would not

serve the public interest. Federal Communications Com-

m'n v. WOKO, supra. |

mii ¢

— Affirmed.

Witpur K. MILLER, Circuit Judge, concurnng: 1 agree

with the holding of the foregoing opinion that the Com-

mission’s refusal to renew the license of the Kingstree

station should be affirmed because it found under issue No.

1 that Robinson made misrepresentations -and false state-

ments, but I think the opinion does not go far enough. .

The Kingstree radio station was established in 1949

with the appellant and Marion L. Few as equal partners.

During the succeeding seven. years, Few reteived com-

plaints about Charlie Walker’s programs which he said he

passed on to Robinson. Finally, in 1956 Few discharged

Walker because of his broadcasts, bit Robinson promptly

reinstated him. Because. of this, Few severed his con-

nection with the station. This-is convincing evidence, not

mentioned ‘in the majority opinion, that Robinson delibe-

rately falsified when -he said he knew nothing of the con-

tents of Walke~’s programs, and furnishes strong addi-

6-A

‘tional support for the Commission’s conclusion under.

- issue No, 1.

' Samples of his broadcasts are in the record. They con+

‘stitute, I think, plain violations of the statute which de-

_ neunces as criminal] the uttering of obseene, indecent or —

” profane langauge by means of radio communications.’ (1

understand that in December, 1963, a federal - district

court found Charlie Walker guilty of violating this statute

in his broadcasts over Robinson’s radio ‘station.} It is

almost incredible that a licensee would permit such vul-

gar and indecent programs to emanate from his station,

' but the fact that Robinson, knowingly did so is, I think, —

amply demonstrated in the record. Whether or riot this |

fact justifies charging Robinson personally with violating —

§ 1464, it demonstrates at the very.least the soundness

_of the Conmission’s conclusion under issue No. 2 that he

‘did not exercise adequate control or supervision of pro-

gramming ; material broadcast over his station. .

Robinson’s guilt under issue No. 3, ‘as found by the

Commission, seems tg me to be apparent from the record,

and it goes without saying that the Commission was cor-

rect in finding, under issue No. 4, that the station’s

Charlie Walker programs did not meet the needs of the

areas and populations served by the station. No area .or

‘population needs a radio program which ‘violates the

criminal statute to which I have referred.

\. These fully —— conclusions of the Commission un-

der i issues Nos. 2, 3 and 4 should have been examined and

__upheld. by: the majority, and assigned as. additional rea-

~ sons for affirming the Commission’s action in refusing to

_ renew Robinson's license. In my view, the industry and

J Section i464 of Title 18 is as follows:

“Whoever utters any obscene, indecent, or profane language

by means of radio communication shall be fined. not more than

$16,000 or imprisoned not more than two years, or both. (June

25, 1948, ch. 645, 62 Stat. 769).”

7A

the public are entitled to know the full story, so it will

be generally understood that such conduct will not be

tolerated.

Perhaps the majority refrained from discussing the

other issues because of a desire to avoid approving any

Commission action which might be called program censor-

ship. I do not think that denying renewal of a license

because of the station’s broadcast of obscene, indecent or

profane language—a serious criminal offense—can prop-

erly be called program censorship.‘ But; if it can be so

denominated, then I think censorship to that extent is not

only permissible but required in the public interest. Free-

dom of speech does not legalize using the public airways

to peddle filth. coe |

In KFKB Broadcasting Ass'n v. Federal Radio Commission, 60

App. D. C. 79, 47 F. (2d) 670-(1931), we said: *

“Appellant contends that the attitude of the commissien

“mounts, to a censorship’ of the station contrary to the provi-

sions of section 29 of the Radio Act of 1927 (47 USCA § 109).

“This contention is without merit.. There has been no attempt

on the.part of the commission to subject any part of appellant's

broadcasting matter to scrutiny prior to its release. In con-

’ sidcring the question whether the public interest, convenience,

or necessity will be served by. a renewal of appellant’s license,

the cermmission has merely exercised ifs undoubted right to

tuke note of wppellant’s past conduct which is not censorship.”

8A

UNITED STATES COURT OF APPEALS |

FoR THE DISTRICT OF COLUMBIA CIRCUIT —

SFPTEMBER TERM, 1963 —

Q

y No. 17,587

E.G ROBINSON, JR., tr/as PALMETTO BROADCASTING

' ComMPANy- (WDKD), ;

Appellant,

Vv. :

FEDERAL CoMMU NICATIONS, COMMISSION,

| Appellee.

Filed March 19, 1964 —

_ Appeal from the Federal Communications Commission.

Before: BAZELON, Chief Judge, and WILBUR K. ‘MILLER |

and WASHINGTON, Circuit Judges.

JUDGMENT

This case came on to be heard on the record from the

Federal Communications Commission, and was ar gued by

counse]. ”

ON CONSINERATION WHEREOF, it is ordered and

adjudged by this court that the decision and order of the —

Federal Communications Commission-on appeal her ein are

. hereby affirmed.

wy, Per Curiam.

Dated: March 19, 1964.

Separate concurring opinion by Circuit Judge Wilbur

K. Miller. :

9A

UNITED STATES COURT. OF. APPEALS

_,- For THE DisTRICT OF COLUMBIA CIRCUIT

No. 17,587 ; a

E. G. ROBINSON, In. tr/as Paimttto BROADCASTING

CoMPANY (WDKD), ;

2"

Vv.

FEDERAL COMMUNICATIONS COMMISSION,

arene.

—_——

On Petition for Rehearing En Bane

_ Before: BAZELON, Chief Judge, and WiLBuR K. MILLER,

FAuy, WASHINGTON, DANAHER,. BASTIAN, BURGER,-

WRIGHT, and McGowan, Circuit‘ Judges, in ——

. Filed May 7.1964"

ORDER

On consideration of appellant's petition for rehearing

en bane, it is

ORDERED by the court en banc that ial petition is here-

by denied.

”

Per Curiam.

Wricut, Circuit. Judge, coneurri: uy: In his petition for

rehearing en bane, appellant seeks to raise again the issue

of censorship of program content by Government officials.

He argues:

10A

“A majority of the present Supreme Court has

made.-it clear that any examination into ‘program

content’ by an administrative-agency functioning un-

der a broad ‘public interest’ or ‘general welfare’

. Standard ‘contravenes First’ Amendment freedoms.

Where administrative agencies, in the exercise of

. their licensing functions, ‘judge ‘the content of the

words and pictures to be .communicated’, the safe-

guards of the First and Fourteenth Amendments be-

come applicable save in the exceptional case. Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952).

A violation of the First Amendment arises where a

government agency ‘undertakes to censor the contents

of the broadeasting’. Kovacs v. Cooper, 336 U.S. ‘77,

97 (1949) (Jackson, J. coneurring!: ‘Any examin- ,

ation of thought or expression in order to prevent

publicatien of “objectionable materiai’’ is censor-

ship.. Farmers Union v. WDAY, Inc., 360 U.S. 525,

527 (1960) ‘emphasis by the Courti.* * * °

| Additionally!, a basie~concept runs througout

recent Supreme Court decisions to the effect that,

since First .Amendment freedoms need breathing

space to survive, the government may regulate in this

area ‘only with narrow specificity’. “NAACP v. But-

tun, 31 Law Week, 4063, 4067 (1963) ; ; ef. New York

Times Co, v. Sullivan, 32 Law Week 4184 (1964);

Speiser v. Randatl, 357 U.S. 513, 526 (1958). Aecord-

ingly ‘stricter standards of permissible statutory

vagueness may be applied to a statute having a poten-

tially inhibiting effect on speech’, Smith v. Califor-

nia, 361 U.S. 147, 151 (1959), * * *

eh

[See also Joseph Burstyn, Inc. v. Wilson,

supra, Staub vy. Baxley, 355 U.S. 313 (19581:') Butler

Y. nigra! poe US. 30), 883 61957): Bantari

Books, Ine. ve Sullivan, 31) Law “Week 4194, 4194-

4196 (US. sae, Ct. 1963).”

Most important. appellant suggests that the absence of

2 ruling from this court on the Commission's powers of

program review will be understood by the broadcastiag

11A

industry as an endorsement of Commission censorship. A .

prediction of a law review writer is quoted:

“* * * The court of appeals, in reviewing | Robin-

son}, may uphold the Commission’s action on some of

the alternative grounds of decision. In this event,

the limits on FCC authority will remain unclear, and

its action in | Robinson| may prove a successful feint

of regulation, whereby the FCC can affect program |

content even when it may. not actually have authority

to do so. * *

77 HARV.L.REV. 713 (4964).

I do not read the decision of this court to endorse pro-

oem content regulation. See 48 Stat. 1091, 62 Stat. 682,

USS.C. § 326. The opinion stated, “We intimate no

views on whether the Commission could have denied the

applications if Robinson had been truthful.” (Slip -opin-

ion, pp. 4-5.) ‘The concurring judge noted: “Perhaps the

majority refrained from discussing the other issues be-—

cause of a desire to avoid approving any Commission ac-

tion which might be- called program censorship.” (Slip-

opinion, pp. 6-7.)

If the Commission were likely’ to undertake such pro-

gram content review, en banc consideration would be jus-

tified. But this does net seem likely, for the Commission

‘seems to recognize the First Amendment, statutory, and

policy bases for protection of programming from the Gov-

ernment censor. ‘Subsequent to its action in thé matter

under review, the Commission announced:

“We recognize that * * * provocative programming

* * * may ofiend some listeners. But this does not

mean that those offended have the right, through the

Commission's licensing power, to ule such program-

ming off the airwaves. Were this the case, only the:

Wholly inoffensive, the bland, could gain access to the

radio microphone or TV camera. No such “drastic

curtailment can be countenanced under the Constitu-

12A

tion, the Communications Act, er the Commission’s °

policy, which has consistently sought to insure ‘the

maintename of radio and television as a medium of

freedom of speech and freedom of expression for the

people of the Nation as a whole’ (Editorializing Re-

‘port, 13 F.C.C. 1246, 124%). In saying this, we do

not mean to indicate that those who have complained

about the foregoing programs are in the wrong as to

the worth of these programs and should listen to

them. This is a matter solely for determination by

the individual] ‘listeners. Our function, we stress, is

not to pass on the merits of the program—to com-

mend or to frown. * * * |

* * . * * *

“e * * Wie are charged under the Act with ‘pro-

moting the larger and more effective use of radio in

the public interest’ (Section 303'g'), and obviously,

in the discharge of that responsibility, must take

every precaution to avoid inhibiting broadcast licen-

sees’ efforts at experimenting or diversifying their -

programming. Such diversity of programming has

been the goal of many Commission policies ‘e.g., mul-

tiple ownership, development of UHF, the fairness

doctrine). Clearly, the Commission must remait

faithful to that goa! in discharging its functions in

the actual area of programming itself" <

In re Applications of Pacifica Foundation, FCC44-43, No.

45386, pp. 3-5,

] see no need now to decide whether this statement: ex-

hausts the constitutional protection of free speech in

broadcasting, or whether the Commission, in the ouoted

case and in the case before us, correctly applied the con-

stitutional guarantees. It is enough now for me that

the Commission realizes the vital importance of preserv-

ing both free speech and an atmesphere of freedom in

these communications media. For this reason, I de -not

feel that an en bane consideration of this case is neces-

sary. -

13 A

UNITED STATES COURT OF -APPEALS

For THE DisTricT oF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1965

. *

No. 17.587

E. G. Roginson, Jx., tr as PALMETTO BROADCASTING

COMPANY *WDKD), |

Appellant,

Ve

FEDERAL COMMUNICATIONS COMMISSION,

‘ . Appellee.

Filed May 11, 1964

Before: BAZELON, Chief Judge, Witpur K. MILLER,

and WASHINGTON, Cireait Judges, in Chambers.

ORDER

On consideration of appellant's petition for rehearing,

it is o. .

ORDERED ‘by. the court that the petition is hereby

deniea.

- Per Curiam.

Dated: May 11. 1964