# Opposition Brief — Democratic National Committee v. Federal Communications Commission

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0888%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 843

## Text

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TABLE OF CONTENTS

TABLE OF AUTHORITIES 202...-c.cccccccccccccsccsssssssss
OPINIONS BELOW
JURISDICTION ...................-- <i einlieeeaaemmaS
QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND STATUTES
ID cccsersncwenrensuesivaenenieininnutstitiiasnsssiaidanininhteenivicnisia

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
IE oa 2 “niga eeceaacecotneiomamapenntniansen

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.

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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).

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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

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“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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16

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0888%3A4. Public record. Not legal advice.