Opposition Brief — Democratic National Committee v. Federal Communications Commission

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TABLE OF CONTENTS

TABLE OF AUTHORITIES 202...-c.cccccccccccccsccsssssssss

OPINIONS BELOW

JURISDICTION ...................-- <i einlieeeaaemmaS

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND STATUTES

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SaTEMENT

EE ener enernscenseennineesoniemnenesntalinnninsnianisiiineinieelisitete

I. There is No Significant Question That Would

Warrant Review By This Court —......0000000..

II. Commission Procedures For Processing Fairness

Doctrine Complaints Foster Rather Than In-

fringe First Amendment Rights 000000.

ST nnsttinieensicienssais:scnansluantaeebbinaboianiaesmmanisaaaaals

ii

TABLE OF AUTHORITIES

Cases:

American Telephone and Telegraph v. U.S., 299

US. 333 (1966) ........ POA SEEN at eRe OPO ena

Columbia Broadcasting System, Inc. v. Democratic

National Committee, Nos. 71-863, et al., 40 U.S.

L.W. 3410 (February 29, 1972) ~.........0000020....

Day-Brite Lighting Inc. v. Missouri, 342 USS.

SE II: sche ietcintcceiccdiciss ph eeaualigndsastoninataisnawslntiegieu

Dorothy Healey v. FCC, D.C. Cir. No. 24,630, de-

cided March 3, 1972, Slip Opinion — 0...

FCC v. Schreiber, 381 U.S. 279 (1965) —....0000.

Ferguson v. Skrupa, 372 U.S. 726 (1963) —.........

Hale v. FCC, 425 F.2d 556 (D.C. Cir. 1970) __....

National Broadcasting Co. v. FCC, 319 U.S. 190

ss sicee cited ntsc ane nual aceestenlenede aicteiaosesiaighded-cuidiataniattdncb tien

Red Lion Broadcasting Company v. FCC, 395

Se ID nirerercesiniccenintniennicninnateni 10, 12, 14,

Udall v. Tallman, 380 U.S. 1 (1965) —...---0000000....

62 Cases of Jam v. U.S., 340 U.S. 593 (1951) —......

Commission Decisions and Reports:

Allen C. Phelps, 21 F.C.C. 2d 12 (1969) __.....

Applicability of Fairness Doctrine in the Hand-

ling of Controversial Issues of Public Import-

ance, 40 F.C.C. 598 (1964) —......22... 16,

Committee for the Fair Broadcasting of Contro-

versial Issues, 25 F.C.C. 2d 283 (1970) _........

In re Complaint of Democratic Committee Against

NBC, CBS and ABC, 33 F.C.C. 2d 631 (1972)...

In re Notice of Inquiry and Notice of Proposed

Rule Making in Docket No. 18859, 23 F.C.C. 2d

27 (1970) ....... sg ST Mitac ee ata

In re the Handling of Public Issues Under the

Fairness Doctrine and the Public Interest

Standards of the Communications Act, 30

Rs I, SD se icesxcasianiesnadvecensienndthennciocornon

Letter to Blair Clark, 11 F.C.C. 2d 511 (1968),

aff'd sub nom. McCarthy v. FCC, 390 F.2d 471

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Page

15, 20

17, 19

11, 12

18

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PELE ER SARI A RT OE Tt Te ee RR a te mesa et ETN “Ene :

Se : 5 oe ss

TABLE OF AUTHORITIES—Continued iii

Page

Letter to Nicholas Zapple, 23 F.C.C. 2d 707

SID. rkcrrennsnetacintictastneiesinneaninsiomitinnaaiepuininassnettcainotentine 4,5

Republican National Committee, 25 F.C.C. 2d 739

(1970) rev’d sub nom. Columbia Broadcasting

System, Inc. v. FCC, 454 F.2d 1018 (D.C. Cir.

| | nO 4,11

Robert G. Ryan, 25 F.C.C. 2d 884 (1970) —..... 16

Constitutional Provisions and Statutes:

First Amendment, U.S. Constitution — passim

Communications Act of 1934, 47 U.S.C. § 151 et

seq.:

Section 315(a), 47 U.S.C. §315(a) 2. 4,5

66 Stat. 717 (1952 amendments) — WW... 15

73 Stat. 557 (1959 amendments) —.....000. 15

86 Stat. 3 (1972 amendments) —........000000000... 15

Miscellaneous:

Alfred I. du Pont—CoLUMBIA UNIVERSITY SurR-

VEY OF BROADCAST JOURNALISM 1970-1971

STII cic icdcheseceegscsotsisepteeciedeta adele alin dace os ephdinainliin 18

28TH ANNUAL FCC REPORT (1962) _.... 18

36TH ANNUAL FCC REPORT (1970) _............ 18

P. Herring, PRESIDENTIAL LEADERSHIP (1940) _. 8

Hovland, Effects of the Mass Media of Communi-

cation, IN MASS MEDIA AND COMMUNICATION

ee ee 14

JAFFE, The Editorial Responsibility of the Broad-

caster: Reflections on Fairness and Access, 85

Tie TU I I nace eicieensntnes 9

J. Klapper, THE EFFECTS OF MASS COMMUNICA-

I III scactichessietecanstahacttusalincmninncicttbnnsncnubalsiciniaks 14

G. McConnel, THE MODERN PRESIDENCY (1967) 8

aul

.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

Case No. 71-1405

DEMOCRATIC NATIONAL COMMITTEE,

Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENT

AMERICAN BROADCASTING COMPANIES, INC.

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals has not yet been

officially reported. It is reproduced in Appendix A to

the petition filed by the Democratic National Committee.

The Memorandum Opinion and Order of the Federal

Communications Commission is reported at 31 F.C.C. 2d

708 (1971) and is reproduced in Appendix C to the peti-

tion filed by the Democratic National Committee.

2

JURISDICTION

The judgment of the court of appeals affirming the

decision of the Commission was entered on February 2,

1971. DNC Pet., App. B, p. 42a. The petition for a

writ of certiorari was filed on April 28, 1972. The ju-

risdiction of this Court is invoked under 28 U.S.C.

§ 1254 (1).

QUESTIONS PRESENTED

1. Whether the court below erred in holding that the

Federal Communications Commission' acted within its

discretion by declining, in an ad hoe context, to promul-

gate a new rule which would pre-designate the opposition

political party as the recipient of an automatic and equal

time right of reply to broadcast appearances by the Presi-

dent of the United States?

2. Whether the court below erred in concluding that

it is reasonable for the Commission to require that com-

plainants in fairness doctrine cases assert more than

vague and general allegations of unfairness and that,

pursuant to this standard, the complaint of the Republi-

can National Committee did not justify the correlative

request that ABC be ordered to produce programming

documents and logs?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The pertinent Constitutional and statutory provisions

which ABC believes are involved include the First Amend-

ment to the Constitution and Section 315(a) .of the Com-

munications Act of 1934. These provisions are set forth

in the petition of the Democratic National Committee.

1 Hereinafter the “Commission” or the “FCC.”

3

STATEMENT

Respondent American Broadcasting Companies, Ince.

(hereinafter “ABC”’), itself or through its subsidiaries,

is the licensee of radio and television stations and op-

erates radio and television networks. As such, ABC

must continually make determinations as to what subject

matter is to be transmitted over its facilities, including

specifically news and public affairs programming. It

is in the performance of this role that ABC presents

important addresses of the President of the United States

and invites the President and other national leaders to

periodically appear in less formal discussion-type formats.

In this general context, the Democratic National Com-

mittee (hereinafter “DNC’’) requested the Commission

to order ABC and the two other national television net-

works (CBS and NBC) to provide the DNC with free

prime time programming for the presentation of views in

opposition to those assertedly voiced during certain radio

and television appearances of President Richard M.

Nixon.’ ABC and NBC had declined to accede to DNC’s

demand for free time to answer, respectively, a March

22, 1971, one-hour broadeast on ABC radio and tele-

vision networks entitled ‘‘A Conversation with the Presi-

dent” and an interview with the President on the NBC

“Today” show on March 15, 1971. In addition, both CBS

and NBC denied DNC’s request for time to answer a 20

minute Presidential address which was carried by all

three networks on April 7, 1971, concerning the situation

in Southeast Asia.

*The various broadcast appearances involving the President are

described in the lower court’s decision. See DNC Pet., App. A, pp.

4a-5a. Two of the programs were interviews of the President by a

single network correspondent (one on ABC and the other on NBC);

the third program was a Presidential address on the Indochina War

issue and was carried by all three networks.

ee cern ter te Sot te manent |

4

ABC, however, determined that it would be appropriate

to afford Democratic Party spokesmen an opportunity to

discuss the Indochina War issue. Accordingly, ABC of-

fered 30 minutes in prime time for the presentation of

views in a format to be agreed upon in advance by DNC

and ABC, and this offer was effectuated on April 22, 1971,

when six Democratic Senators appeared on the ABC Tele.

vision Network in a program entitled “Indochina— An-

other View.”

The several DNC complaints filed with the Commission

on April 13 and 14, 1971, rather than attempting to

establish a violation of the Commission’s general fairness

doctrine, instead reiterated a pending request of the DNC

for rulemaking in an outstanding Commission proceed-

ing,’ and claimed that notwithstanding the achievement of

fairness and overall program coverage on the issues in-

volved, the DNC was entitled to a specific right of reply

to each individual Presidential appearance. In addition,

DNC urged that past Commission holdings established

that it should be given equal time to respond.‘

In reply, each of the networks asserted that they were

not required to provide specific response time to DNC,

that the Presidential appearances in question were gov-

erned by the general fairness doctrine requirement that

opportunity be provided for the presentation of contrast-

ing viewpoints on controversial issues discussed by the

3In re Notice of Inquiry and Notice of Proposed Rule Making

in Docket No. 18859, 23 F.C.C.2d 27 (1970).

*The rulings relied upon DNC were Letter to Nicholas Zapple,

23 F.C.C. 2d 707 (1970) and Republican National Committee, 25

F.C.C. 2d 739 (1970) rev'd sub nom. Columbia Broadcasting Sys-

tem, Inc. v. FCC, 454 F.2d 1018 (D.C. Cir, 1971). In these cases

the Commission had applied a “quasi-equal opportunities” approach

to some broadcasts by political parties—i.e., if a station sells or

gives time to one political party, it should sell or give comparable

time to the rival party. Section 315(a) of the Communications

Act, of course, only provides that “equal opportunities” be extended

to opposing political candidates.

5

President and that, in this sense, fairness had been

achieved.” The networks also stressed that the auto-

matic right to reply to Presidential appearances proposed

by DNC was not compelled by existing law—rather the

present statutory framework pre-designates the counter

spokesman on public issues only in the situation of bona

fide political candidates.°

ABC stated that besides the April 22 broadcast by six

Democratic spokesmen, views in contrast to those ex-

pressed by the President were given by Senator Mans-

field after the State of the Union Address of January

22, 1971. In addition, ABC pointed out that in the im-

mediately preceding period alone—from January to April,

1971—six Democratic spokesmen appeare? on its public

affairs program “Issues and Answers” and opposed the

views of the President, whereas two persons appeared

who favored his views. ABC also indicated that it had

devoted significant time to views favoring and in contrast

to those of the Administration in newscasts during the

relevant period and in such programs as the “Dick

Cavett Show”.

The Commission held that such past decisions as Letter

to Nicholas Zapple, supra, merely established th gen-

eral proposition that, during election campaigns, it would

be unreasonable for a licensee to refuse time to a political

party or supporters of a political candidate after a li-

censee had given time to the supporters of an opposing

candidate. The Commission refused to extend this ruling

to broadcasts involving the President, determining to con-

tinue to apply the general principles of the fairness doc-

trine to Presidential appearances rather than carving out

*In this regard, showings were made that con* asting views

had been presented as to the issues raised in the three specific

Presidential appearances in question as well as with respect to

other recent appearances by the President.

°47 US.C. §315(a).

6

a new corollary which would lodge an automatic right

of reply with the opposition political party. The Com-

mission further found that the network companies had

not violated their fairness doctrine obligation to present

contrasting views to those expressed by the President

and that, accordingly, the evidentiary hearing requested

by DNC was unnecessary.

In the same opinion, the Commission denied a related

complaint filed by the Republican National Committee

(hereinafter “RNC”) directed against ABC. This com-

plaint stemmed from ABC’s decision not to accede to

RNC’s demand for free broadcast time to respond to

ABC’s April 22 program featuring six Democratic Sena-

tors." Furthermore, without any documentation of its

own, RNC claimed that, in deciding to present the April

22 program involving six Democratic Senators, ABC had

not given consideration to views presented by guests on

ABC’s late evening “Dick Cavett Show”. Thus, RNC

urged the Commission to compel ABC to provide “any

logs and other documents” demonstrating “the time used

on ABC during the period February 8 to April 8, 1971,

for the discussion of various viewpoints on the Indochina

issue.” DNC Pet., App. A, p. 49a. On this point, the

Commission held that ABC should not be required to pro

vide detailed documentation of its public issue program-

7 As to this fairness doctrine aspect of the RNC complaint—a

matter which is not covered by the DNC petition—the Commission

ruled that, in light of the fact that a reasonable opportunity had

been provided for the presentation of contrasting views on the

Vietnam war, ABC had met its fairness obligation and was not

compelled to provide the RNC, qua political party, with time te

specifically respond to what RNC characterized as a_ previous

partisan presentation of the DNC. DNC Pet., App. C, p. 54a. The

lower court similarly refused “to sanction the commencement of

an unending circle” of political party appearances, remarking that

“'s|hould we grant RNC an opportunity to respond to DNC we

would embark upon a course of request after request.” DNC Pet,

App. A, p. 23a.

ies

7

ming in response to a bare, unsupported allegation of

unfairness. DNC Pet., App. A, p. 55a.

On petitions for review, the court of appeals unani-

mously affirmed the Commission’s ruling. The Commis-

sion’s application of its fairness doctrine to Presidential

appearances on the broadcast media (DNC Pet., App. A,

pp. 14a-28a), as well as certain procedural policies gen-

erally applicable to fairness doctrine situations (DNC

Pet., App. A, pp. 29a-40a), were found to be reasonable

exercises of agency discretion which did not violate the

First Amendment. Further, the court held that the Com-

mission’s findings were fully supportable, within its stat-

utory authority, and not “arbitrary, whimsical, or

capricious.” DNC Pet., App. A, p. 41a.

ARGUMENT

In attempting to persuade this Court to grant plenary

review of the lower court decision, DNC has merely mud-

died an otherwise unambiguous path. Stripped to its

essence, the DNC petition is a strained effort to surround

the lower court opinion with a heightened significance

that is unfounded on the record before both the Com-

mission and the court of appeals.

Rather than the artificial dimensions DNC would draw,

the lower court opinion merely affirms long-held Com-

mission policies concerning the coverage of controversial

public issues, and determines that those policies had been

rationally and fairly applied in this particular case. Ac-

cordingly, absent any finding of abuse of discretion, the

court appropriately declined to substitute its judgment

for that of the agency specifically created by Congress

and entrusted with the decisional responsibility to fash-

ion such policies. See National Broadcasting Co. v. FCC,

319 U.S. 190 (1943); FCC v. Schreiber, 381 U.S. 279

(1965); Udall v. Tallman, 380 U.S. 1 (1965).

cosh ease sph PR,

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8

Particularly indicative of the shallowness of the ques-

tions presented by the DNC petition is the apparent

effort to conceptually link this case with a pending con-

solidated proceeding before this Court. Unlike here,

however, that proceeding involves an entirely new inter-

pretation and extension of the First Amendment as ap-

plied to broadcasting. This case, in ‘contrast, represents

merely the dispute of a private party as to how existing

policies in one particular circumstance (Presidential

media appearances) should be applied. Moreover, the

issues that DNC raises are irrelevant to the question

of an affirmative First Amendment right of paid access

to the broadcast media for public issue announcements

during broadcast advertising time—the issue at stake in

the cited pending cases.

The Petitioner also casts the lower court opinion in an

aura of undue significance by associating the unique

qualities and responsibilities of the Office of the Presi-

dency with what it asserts is the special effectiveness of

the electronic media in the political process. While there

is little doubt of the pervasive qualities of radio and

television as disseminators of information, DNC’s as-

sertions as to the particular degree of interrelationship

between the attributes of the Office of the Presidency

and the effectiveness of the media are mere speculation.

Surely the Office of the Presidency is unique in our politi-

cal structure,” but a recognition of this fact may well

diminish rather than enhance DNC’s position that broad-

cast appearances by the elected leader of the nation

~See Columbia Broadcasting System, Inc. v. Democratic National

Committee, No. 71-863, consolidated with FCC v. Business Execu-

tives Move for Vietnam Peace, No. 71-864; Post-Newsweek Stations,

Capital Area, Inc, Vv. Business Executives Move for Vietnam Peace,

No. 71-865; and American Broadcasting Companies, Inc. v. Dem-

ocratic National Committee, No. 71-866.

° See, e.g., P. Herring, Presidential Leadership (1940) p. 12;

G. McConnel, The Modern Presidency (1967) pp. 15, 35.

9

should be automatically “balanced” by the appearance of

the opposition political party. In sum, simple conjecture

as to the effectiveness of the broadcast medium in the

formation of public opinion is obviously an inadequate

basis on which to proceed to initiate new requirements

with respect to the use of that medium by the nation’s

Chief Executive.”

I. There Is No Significant Question That Would Warrant

Review By This Court.

It is noteworthy that not only the Commission and the

court below, but the parties, including DNC, apparently

agree on the First Amendment principle involved. For

instance, DNC stresses that the relevant First Amend-

ment goal in this context is to produce an informed pub-

lic and to preserve broadcasting as a forum for robust,

uninhibited and wide-open debate of public issues. DNC

Pet., pp. 13-14. The real dispute framed, therefore, mere-

ly centers on DNC’s claim as to how this objective should

be interpreted and implemented.

The lower court held that public discussion would be

inhibited if Presidential broadcast appearances were all

pre-designated—irrespective of the content and nature

of the appearances—for an equivalent response by the

opposition political party, since the President would

thereby restrict his use of television. DNC’s assertion

that this is an “unsubstantiated fear that cannot justify

abridgement of First Amendment rights” (DNC Pet.,

p. 15) is totally misplaced. Rather, a plain reading of

the lower court’s opinion is that DNC’s proposal to create

an automatic right of reply to all Presidential appear-

‘For a view that contemporary advocates of expanded and

individualized media access may be misled in assuming too great

a power of television to develop political consciousness, see Jaffe,

The Editorial Responsibility of the Broadcaster: Reflections on

Fairness and Access, 85 Harv. L. Rev. 768, 769-71 (1972).

10

ances would indeed abridge First Amendment interests,

In DNC’s twisted view of the lower court decision, how-

ever, it is said that the ultimate result means that only

the President’s voice and views will be heard on political

issues and that the public will be denied the exposure to

competing viewpoints essential to an informed electorate, _

DNC Pet., p. 15. This is totally inaccurate since the

Commission and the lower court clearly affirmed the ap-

plicability of the fairness doctrine to Presidential appear-

ances to insure that contrasting views to those of the

President are presented on the broadcast media.

In essence, DNC really is left to suggest that it, as

the opposition political party, does not obtain the broad-

cast exposure that it determines necessary and appro

priate. In other words, the real question at issue is one

of degree in which DNC asserts that—irrespective of the

exposure of Democratic spokesmen on an appropriate

rather than an automatic basis and the full and fair

treatment of issues discussed in Presidential appearancs

—it is entitled to an additional special organizational

right that is fully comparable to the President’s broad-

cast media exposure.

court below and the Commission have applied the fair-

ness doctrine so as to “defeat the doctrine’s role of as-

suring that the listeners and viewers will be adequately

exposed to contrasting viewpoints on controversial issues

of public importance.” (DNC Pet., p. 16). In point of

fact, the Commission and the court below have construed

; the fairness doctrine in a manner that is fully consistent

with this Court’s interpretation of the First Amendment

purpose of that doctrine in its leading Red Lion™ case.

DNC simply fails to acknowledge that the basis for the

Commission’s ruling and the court’s decision below was

In DNC’s opinion, review is warranted because the

4

11 Red Lion Broadcasting Company V. FCC, 395 U.S. 367 (1969).

=a pe?

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11

that acceptance of DNC’s position would result in a de-

gradation of the vital First Amendment interests under-

lying the fairness doctrine and would frustrate the objec-

tive of insuring that listeners and viewers are adequately

exposed to all contrasting viewpoints on significant issues

of public importance.

It is undisputed that the fairness doctrine is fully

applicable to the discussion of controversial issues dur-

ing Presidential appearances.’* Accordingly, Presidential

appearances on broadcast stations involving the discus-

sion of public issues, under present procedures, invoke

an obligation on the part of such licensees to present the

viewpoints of contrasting spokesmen.

In the traditional operation of the fairness doctrine,

however, this has allowed licensee discretion in determin-

ning the schedule and format of such presentations—

including, particularly, flexibility in selecting the appro-

priate spokesmen for such views rather than their pre-

designation.” DNC suggests that the court below re-

fused to “come to grips” with its central argument and

was “reluctant to disturb the unchecked discretion”

lodged with broadcasters under the fairness doctrine.

DNC Pet., pp. 18-19. This sort of characterization simply

will not comport with the plain language of the court

of appeals decision. The court fully comprehended the

nature of DNC’s request and, more importantly, the im-

See Letter to Blair Clark, 11 F.C.C. 2d 511 (1968) ; aff’d sub

nom. McCarthy v. FCC, 390 F. 2d 471 (D.C. Cir. 1968) ; Committee

for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d

283 (1970); Republican National Committee, 25 F.C.C. 2d 739

(1970), rev’d sub nom. on other grounds, Columbia Broadcasting

System, Inc, Vv. FCC, 454 F. 2d 1081 (D.C. Cir. 1971).

‘For instance, in this case ABC demonstrated that it had

achieved fairness through regular newscasts, regularly scheduled

public affairs programming and by means of special events public

affairs programming— including a variety of contrasting spokes-

men.

12

plications of its effectuation. Correctly applying the ra-

tionale of this Court’s decision in Red Lion, the court of

appeals found that to implement the abstract proposal

of DNC would constrict rather than promote the public’s

First Amendment right to hear views that contrast with

those of the President on important public issues. As

the court noted, treatment of Presidential broadcast ap-

pearances under the fairness doctrine generates “robust,

wide-open debate” and the goal of an informed electorate

by allowing and encouraging “the discussion and presen-

tation of controversial issues in various broadcast for-

mats (e.g., newscasts, interviews, documentaries) .”

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In contrast, DNC’s proposal of an automatic equal

time response to Presidential appearances would neces-

sarily confine the discussion to one format and one coun-

ter spokesman. In the lower court’s view, the basic prin-

ciple underlying the fairness doctrine and its treatment

in Red Lion to insure that the public is adequately in-

formed could be achieved by more appropriate means:

LP RII AT BEE RE

é

“At times the President speaks to crucial problems

to which .. . groups [other than DNC] are far more

qualified to speak. DNC and its representatives have

no greater claim to expertise in the area of the econ-

omy than the National Chamber of Commerce or the

president of the New York Stock Exchange, and that

is the point; crucial issues must be reasonably aired

after consideration of the viewpoints of all signifi-

cant factions. This is a matter for licensee discre-

tion and not automatic rule because the speaker is

the President of the United States. If DNC were

correct in their contentions, this illusory First

Amendment right would extend right of response to

addresses by state governors and city mayors.” ”

1* See DNC Pet., App. A, p. 24a, quoting from Committee for the

Fair Broadcasting of Controversial Issues, supra, 25 F.C.C. 2d at

292.

15 DNC Pet., App. A, p. 36a.

13

Consequently, both the Commission and the court of

appeals recognized that DNC’s proposal would not nec-

essarily advance the goal of an informed electorate. DNC

has merely suggested an alternative policy based on the

debatable rationale that the President, by virtue of his

position, is capable of dominating the broadcast media

at will and thereby shaping and limiting the content and

focus of national debate on significant public issues.

Rather than skirting this issue as DNC suggests, the

court of appeals met the problem head on:

“As to the contention that without this automatic

right only the voice of the President is heard, clearly

we can only say that while this may be a persuasive

debate argument, we question its validity here. Daily

all of the media—not merely broadcast media—

carry stories, articles and reports by opponents to

the President, from the opposition party as well as

his own party. In this nation, the varying view-

points are available to any person seeking to hear

or read them. A citizen desiring to be informed

need only pick up a newspaper or news magazine,

flick on his radio, or tune in his television. Infor-

mation indicative of all viewpoints is available mere-

ly for the seeking. We see no need for supplemen-

tation based on some theoretical right in the First

Amendment which at best has gone undefined in

this litigation.'’®

Ignoring this perspective, DNC continues to insist that

by the use of the televised address the President is able

to obtain “instant concensus on his programs and _poli-

cies” and there is seldom a “single focal point of oppo-

sition.” (DNC Pet., p. 17). That the President is able

to achieve an “instant concensus” would probably come

as a surprise to any Administration and is surely pure

"DNC Pet., App. A, pp. 36(a)-87(a).

14

supposition on DNC’s part as to either the impact of the

media or the persuasiveness of the Chief Executive.”

In sum, the Commission and the court below have

merely adhered to the system of broadcast regulation

approved by Congress, implemented by the Commission

through such policy mechanisms as the fairness doctrine,

and approved by this court in Red Lion. That system

turns on a concept of public stewardship whereby indj-

vidual licensees are obligated to inform the public of

contrasting views on significant public issues in a variety

of formats and by multiple speakers rather than pursu-

ant to an equal time approach which would designate

a single opposing spokesman. Moreover, in this particu.

lar instance the record reflects that this procedure of

devoting substantial amounts of news discussion, com-

mentary and interview programs to views contrasting

those of the President was followed. In addition, ABC

specifically provided spokesmen from the Democratic

Party with free time for their use to air views contrast-

ing those of the President on the Indochina War issue.

Consequently, DNC seeks review of a decision which is

fully consistent with prior interpretations of the fairness

doctrine and the teachings of this Court in Red Lion as

to the application of the First Amendment to broadcast-

ing. As the court of appeals noted, “DNC asks [the

court] to give birth to a new corollary [to the fairness

doctrine]. We are not the body to pass on such a re

quest.” '* In conclusion, the court emphasized that there

i hiptbck SG aK

; 17 See generally, J. Klapper, The Effects of Mass Communications

4 (1960) ; Hovland, Effects of the Mass Media of Communication, in

4 MASS MEDIA AND COMMUNICATION 447-82 (C. Steinberg ed. 1966).

'’DNC Pet., App. A, p. 41a. In so ruling, the court, of course,

followed a long line of cases holding that a court’s purpose on re-

view is to determine whether the agency order is unreasonable

or in contravention of statutory purpose and not to substitute its

discretion for that of the administrative agency. See American

Telephone and Telegraph vy. U.S., 299 U.S. 232, 236 (1936). In

15

are more appropriate forums for the advocacy of com-

pletely new standards.”

II. Commission Procedures for Processing Fairness Doc-

trine Complaints Foster Rather Than Infringe First

Amendment Rights.

DNC asserts that the court of appeals approved cer-

tain procedural standards which would deny fairness

doctrine complainants “procedural fairness”. These in-

clude (1) the court’s acceptance, as reasonable, the Com-

mission’s standard that complainants establish “detailed

and specific evidence of failure to comply with the re-

quirements” of the fairness doctrine and (2) the court’s

affirmation of the Commission’s refusal to order ABC to

make available its logs and other programming materials

for a determination of whether a “requisite balance’ in

public affairs programming had been achieved.*"

short, where Congress and the responsible agency have struck one

balance rather than another this Court has repeatedly cautioned

against the temptation of judges to become “super legislatures”

whether under the aegis of the Constitution or through conventional

judicial review. Ferguson v. Skrupa, 372 U.S. 726, 731 (1963);

Day-Brite Lighting, Inc. Vv. Missouri, 342 U.S. 421, 423 (1952);

62 Cases of Jam V. U.S., 340 U.S. 593, 600 (1951). More specifically

perhaps, as this Court noted in Red Lion, supra, 395 U.S. at 381

(1969), the FCC’s interpretation of the fairness doctrine is entitled

to “great weight” and should be followed unless there are “com-

pelling” indications that it is wrong.

™ DNC Pet., App. A, p. 41a. As illustrative of the court’s point,

Congress has several times revised the Communications Act of

1934 to give statutory recognition to the fairness doctrine, amend

the equal time requirement, and for other objectives. See, e.g.,

66 Stat. 717 (1952 amendments) ; 73 Stat. 557 (1959 amendments) ;

and 86 Stat. 3 (1972 amendments). Equally pertinent, the very

subject matter of the DNC’s concern is currently being considered

as part of an outstanding Commission proceeding. In re_ the

Handling of Public Issues Under the Fairness Doctrine and the

Public Interest Standards of the Communications Act, 30 F.C.C. 2d

26, 38-84 (1971).

*°DNC Pet., pp. 19-20. Significantly, although the court’s ruling

was limited to an ad hoe request for documentation as to ABC,

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DNC’s procedural contentions similarly place it in the

bare posture of merely asserting that the Commission

should be judicially directed to drastically modify exist-

ing procedures to conform with DNC’s view that a di-

vergent approach is “more appropriate”. As the court

below found, the Commission has long maintained a

policy of refusing to require licensees, in the normal

course, to engage in laborious searches and collections of

documents to affirmatively prove adherence to the fair.

ness doctrine when a complainant has done no more than

allege general unfairness.*"

Based on decades of experience, the Commission has

adopted the view, which was affirmed by the court below,

that such time-consuming searches would deter the proper

handling of day-to-day broadcast operations, could be

subject to abuse and would generally not be conducive

to uninhibited debate. For this reason, the Commission

DNC now appears to claim that the court failed to actually fashion

a rule of general applicability in this regard, Before the lower

court, DNC’s procedural contentions were restricted to the following

aspects: (1) the timeliness of the Commission’s decision, (2) the

burden of proof on fairness doctrine complainants, and (3) the Com-

mission’s failure to hold an evidentiary hearing on DNC’s claims.

See DNC Pet., App. A, p. 37(a). Thus, the present contention

regarding the need for routine production of “logs and other pro-

gramming materials” to constantly demonstrate fairness was not

specifically raised below by the DNC. Rather DNC merely ex-

pressed support of an ad hoc request of the Republican National

Committee (RNC) to order ABC to make “logs and other docu-

ments” available to satisfy RNC’s speculation as to whether ABC

had considered certain “non-news type” programming in deter-

mining whether fairness had been achieved on a particular issue.

Moreover, RNC has not sought review of the lower court’s decision.

Indeed, based on the representation that ABC had indeed considered

the “Dick Cavett Show” (See page 6, supra) in determining

fairness, counsel for RNC verbally advised the court of appeals at

oral argument that RNC was no longer pressing this issue.

21 Allen C. Phelps, 21 F.C.C. 2d 12, 13 (1969); Applicability of

Fairness Doctrine in the Handling of Controversial Issues of Public

Importance, 40 F.C.C. 598, 600 (1964); Robert G. Ryan, 25 F.C.C.

2d 884, 885 (1970).

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17

has implemented certain minimal and reasonable stand-

ards which the complainant in a fairness doctrine con-

text must normally meet before the agency will act upon

such a complaint. For example, the Commission has

merely determined that it will not act upon the merits

of fairness complaints absent some showing that the li-

censee involved acted unfairly in covering a particular

issue.

In this specific case, the court found that it was not

only appropriate to place the initial burden in such in-

stances with the complainant rather than the licensee,

but that DNC had failed to meet that burden in this

proceeding. DNC Pet., App. A, p. 38a. In this Court,

DNC goes beyond the general burden of proof issue and

now argues that in being denied regular and general ac-

cess to certain undefined programming materials of broad-

cast licensees, fairness doctrine complainants are refused

“the only available source of ‘specific and detailed evi-

dence’ of a broadcaster’s coverage of controversial issues

of public importance,” DNC Pet., p. 20.% During the con-

22 See Applicability of Fairness Doctrine in the Handling of

Controversial Issues of Public Importance, supra, 40 F.C.C. at 600.

There are, however, no formal rules that inflexibly govern such

situations.

*°JIt should be noted that the court below ruled on this point

even though it initially found that DNC had failed to preserve

the burden of proof issue for review because it had not raised the

claim before the Commission. Pet. App. A, pp. 37(a)-38(a). This

procedural deficiency is, of course, compounded by the fact that the

further claim for logs and other programming documentation was

a claim in the court below unique to the RNC, not the DNC.

** DNC’s speculation that monitoring of the programming of the

three networks would be an insurmountable undertaking is greatly

misleading. DNC Pet., p. 21. First of all, the impression that con-

tinual monitoring on all issues and as to all programs (including the

vast bulk of entertainment, sports and similar programming) is

necessary is simply spurious. Generally, any monitoring that was

necessary could be limited to regularly scheduled news and public

affairs programming. Furthermore, experience dictates that others

—— ee ee |

18

siderable period the Commission has administered the

fairness doctrine it has processed thousands of legitimate

complaints which have been successfully raised without

resort to “logs and program material”. Furthermore,

the Commission’s experience simply will not support the

additional assertion that the effect of the court’s ruling

on these procedural matters—which does no more than

affirm long-standing practices—will be to discourage fair-

ness doctrine complaints by those wishing to present

their views on controversial issues. Certainly the recent

trend in fairness complaints has been toward a steady

escalation and there is no discernible evidence that re-

jections of fairness complaints on this ground have cor-

respondingly increased.”

It is also important to emphasize that the fairness

doctrine procedures utilized by the Commission by no

means represent an absolute prohibition against request-

ing the production of program documentation by broad-

casters in certain instances. In other words, although

on infrequent occasions and in particular circumstances

the Commission may request such support materials,” it

have been successful in monitoring the efforts of broadcasters—for

fairness doctrine purposes, as well as for challenges to license re-

newals and other objectives. For instance, a rece. survey of the con-

temporary scene remarks that “[!Jicense challengers and civic

action groups monitoring radio and television, rarities in the past,

became commonplace.” Alfred I. duPont—CoLUMBIA UNIVeRsITY

Survey oF BROADCAST JOURNALISM 1970-1971, p. 4 (1971).

** For example, whereas complaints alleging fairness doctrine

violations numbered 409 in 1962, the yearly total had increased to

1,736 in 1970. See 28TH ANNUAL FCC Report (1962) pp. 44, 52

and 36TH ANNUAL FCC Report (1970) p. 62.

2 See, e.g., In re Complaint of Democratic National Committee

Against NBC, CBS and ABC, 33 F-.C.C. 2d 631, 633-35 (1972), on

appeal to the United States Court of Appeals for the District of

Columbia Circuit, Democratic National Committee v. FCC, No. 72-

1314.

19

has more commonly followed the general procedure of

not requiring such documentation since to do so would

forestall rather than foster the robust debate that the

fairness doctrine attempts to achieve. Consequently, for

most purposes—upon a threshold finding that a fairness

doctrine complainant has satisfied the minimal pleading

standards *“—the Commission has found it adequate and

desirable to process legitimate fairness complaints on the

basis of the licensee’s written representation as to his

treatment of the issue in question, and has not generally

required the further submission of such background ma-

terials as transcripts, tapes, logs, etc.

The DNC petition is, therefore, characterized by a

feeble attempt to cloak the lower court decision in artifi-

cial significance and to effectuate a substitution of its

own policies for those of the Commission. However. as

the court below found, the Commission’s policies are nei-

ther unreasonable nor in contravention of statutory pur-

pose. They are of long-standing origin, based on a statu-

tory mandate and represent an affirmation rather than

a departure from the First Amendment principles appli-

cable to broadcasting articulated by this court in Red

Lion.

*“ “Where complaint is made to the Commission, the Commission

expects a complainant to submit specific information indicating

(1) the particular station involved; (2) the particular issue of a

controversial nature discussed over the air; ( 3) the date and time

when the program was carried; (4) the basis for the claim that the

station has presented only one side of the question; and (5) whether

the station had afforded, or has plans to afford, an opportunity for

the presentation of contrasting viewpoints.” In re Applicability of

the Fairness Doctrine in the Handling of Controversial Issues of

Public Importance, 40 F.C.C. 598, 600 ( 1964). See Hale v. FCC, 425

F.2d 556, 559 (D.C. Cir. 1970); Cf. Dorothy Healey v. FCC, D.C.

Cir. No. 24,630, decided March 2, 1972, Slip Op., p. 9.

20

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

Respectfully submitted,

JAMES A. MCKENN

/ /Cart R. Ramey :

| / Attorneys for Respondent —

. American Broadcasting

Companies, Inc.

Of Counsel:

McKENNA, WILKINSON & KITTNER

1150 Seventeenth Street, N.W.

Washington, D. C. 20036

June 20, 1972

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