Amicus Curiae Brief — Red Lion Broadcasting Co. v. Federal Communications Commission

Supreme Court brief1969

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Nos. 2 and 717

. Court, US.

SUPREME COURT. UB. _.. FILED |

er Court of “the United States, se

OCTOBER ERM, 1968

tne , Usnrss ‘Sraves or America AND eal F. -DAYR, 5 esl |

; | CoMMUNICATIONS Commission, Petitione

Vv.

" Rapio TeLevision News Drrecross Assocation, i

ET AL.,: rie cone ae eer

| Rep Lion Broapcastine Co., Inc, Et ET AL, Petitioners,

eee aa %. : :

_—-Feprrat. Communrcations Commission, Respondent.

On Waits or CERTIORARI TO THE UNITED Strates-Courts oF

APPEALS FOR THE J District OF CoLumBIa AND SEVENTH

‘Circurrs

_ Brief of: _ Office of Communication of the United Church

, of Christ,

United Church Board for Homeland Ministries,

..Board of National Missions of the United

Presbyterian Church in the U.S. A., :

National. Division of the Methodist Board of

_ . Missions, ;

_ General Board of Christian Social coarane of

the Methodist Church,

The National Council of Churches—Broadeast-

ing and Film Commission, _

National Catholic .Conference for Interraéial

Justice,

National Board of the Young Women’s "Chris-

tian Association of the U.S.A.,

The American Jewish Committee, —

National Citizens Committee for Broadcasting,

and

American Federation of Lebeotenaiess of In-.

dustrial Organizations, Amici Curiae

——

; EARLE K. MOORE

t . .*; EDWARD A. BERNSTEIN

‘ "MOORE, BERSON, HAMBURG &

° BERNSTEIN :

660 Madison Ave.

New York, N. Y. 10021

. Of Counsel: Attorneys for Amici Curiae

SAMUEL RABINO\* .

‘ 165 East 56th Street

. _ New York, N. Y. 10022

WILLIAM B. BALL ; me :

212 State Street | : ; paar te

Harrisburg, Pennsylvania. 17101 : F mY

——————————————————————————————————————————cc

Po 249 Press of Fremont Payne, Inc., 80 Washington St., N. Y.—BOwling Green 9-8153

_—_o-~

INDEX

ee | PAGE

in SRS NRE Sd IRE MOR FE PRA OT

Background oie ase SVE aa aes 9 a5 sececens rr

Changes i in the Broadeast Industry. PPLE TP re CL Tee

Increase in Channels paces Soe ha ib wks seeees wee

Network Dominance of Programming .....:.. ee

‘Compliance With the Fairness Doctrine «..:...:..:.

: Summary "error eee PORE ee

- Powr Ti—Tiieense renewal proceedings have not

The ‘‘Fourth Network”? .............2..++ Kea dusaaes |

Pont I—The First Amendment to the Constitution

not only permits but requires that the Commis-

sion act so as to assure fair use of the public

ee ivehncen eo flab Ke NE one Soe.

The Metropolitan Newspaper Analogy Sewatun

proved effective in obtaining compliance with the ~

Fairness Doctrine; the ‘public interest requires a

direct and summary procedure is ontubics ttaes 6

Pomr I1Il—The Personal Attack and Political Edi-

torial Rules are a modest first step’ toward bal-

anced programming on maser wy oes

The Rules ay not impose an undue financial

DUPAON 2.6. ce ccccccvcccsescesece grvcvscose ;

Conclusion ERD AR MS 7 PS EAS Pee ORAL eereeeveaneweee “eee

| PAGE

du Betmiiinies League v. Federal Communications :

_ Commission, 14 P & F Radio Reg. 2d 2051 (1968) .13, 26

Banzhaf v. Federal Commumications Commission, eee:

Brown. State of Louisiana, 383 U. 8. 131 (1966) . 24

ane In re Brandywine-Main Line Radio, Inc. (WXUR), 1 14

P & F Radio Reg. 2d 1051 (1968) .....:........ 13, 16

‘ Curtis Publishing Co. v. Butts, 388 U. 8. 130 (1967).. 37

East Meadow Commumity Concerts Association v..The

Board of Education, 18 N. Y, 2d 129, 219 N. E. 2d

172 (1966), after aa 19 N: Y. 2d 605, 224

N.. BE. 2d 888 (1967) 00.3. ..csesccecccccsccscce 24

Federal Radio Commission v. N ion Bros: Bond and .

| Mortgage Co., 289 U.S. 266 (1933) .....:,..4.. 22

Follet v. McCormick, 821 U. 8. 573 (1944) ...:...... a.)

Great Lakes Broadcasting Co. v. Federal Radio Com.

mission, 37 F, 24.993 (D. C. Cir. 1930) 0.3.6.2... oe

Head v.. New Mexico Board of Examiners, 374 U. S.

MDA (UDGS) -. oe ceiccgsevnctccnccccccsisesoccees 82

Jones v. Opelika, 316 U. s. 584, rev'd, 319 U.S. 103 .

(1942). .... Snatithick withadt spa eka tke d cba nese — «83

Kissinger v. New York City Transit Authority 274

mf Supp. 438 ‘(SDNY 1967) ........0...00% £3 ek 24

' Lovell v. Griffin, 303 U. S. 444 (1987) .......020 8B

Mayflower Broadcasting Corporation, . 8 F. CC. 333

CURD ai sxnbiah eee, awanned. det. vais. ie a

‘Marsh v. Alabama, 326'U. 8. 501 es Feu ass . "25

Murdock v. Pennsylvania, 319 U.S. 105 (1943) ...... .. 2

_SNDEX Dae | | fi

pine ee eget / : PAs

National Broadcasting Co. v. United States, 47 F.

_» Supp. 940 (SDNY 1042), 319 U. S. 190 (1943) ..22, 26

Office of Communication v. Federal Communications oh,

‘Commission, 359 F. 2d 994 ae C. Cir:.1966) .... .13, 16,

sy 80,82

Red Lion Beesiesiting Co. ¥. ee ree Commiunica-

tons Commission, 381 F: 2d 908 (D. C. Cir. 1967) 13

Screws v. United States, 325 U. S. 91 (1945) ........ . 36 |

Trinity ,Methodisit Church, South v. Federal Radio

Commission, FRC, Docket 1043, aff 4, 62 F. 2d

850 (D. C. Cir. 1932) ......0.:.0020053 oes,

United States v. Zenith Radio Corp., 12 F. 24 614

OE DP. TL 1928) 23 5200405. -200se0ereeeee per et:

‘Onsen Avrnonrres

Statute Cited: ‘ . :

‘See. 314, Communications Pn oA er ae 6 .

Congressional: |

Hearings Before the House Subsomenittes on Com-

munications. and Power. of the Interstate and

Foreign Commerce Committee on Broadcast

. ditorializing Practices, 88th Cong. 4» Ast Bess.

bg nn be Rati es Boers Vvece er 8

H.R. Rep. No. 281, 88th Cong., 1st Sess. (1963) :... 9

HL R. Rep. No. 1069, 86th Cong., Ist Sess. (1959). ee

‘Network Broadcasting, H. R. Rep. No, 1297, esth, |

Cong., 2d DE Sct sivevamehroesbecé@ivestass 8

S. Rept. No. 562, 86th Cong,, Ist Sess.:.....0...... 6

8. Rept. No. 994, pt.6, Sith Cong, 1st Beas. Ky coaast 33.

| | Administrative:

| ) PAGE .

hed N aeons: aeaioine ‘ininie Report. wid State- :

~~ ment of Policy, F.C.C. 60-970 (July 29, 1960) . 8.

Public Notice dated J raly 26, 1963, 28 Fed. Reg. 7962 - ?

(1963) no SP HAST PA eeieee Teenie ge Fe 6

Public. Notice of | J uly 1, 1964, Applieability of io

Fairness Doctrine in the Handling of Contro-

_ versial Issues of Public Importance’ (Fairness

Primer), 29 Fed. Reg. 10414 (1964) ......:..2, 12,20

“Report in.the Matter of Editorializing by Broadcast

Licensees, 13’ F.C.C. 1246, 25 P & F Radio Reg.

1901. (1949) sae e ee eee e eee eee e eee eee neces 5

Television Network Programming, F. C.C.: 65- 227, 4

POF Eadie Beg, nl ses Deas eeeeees ke we

Miscellaneous: ie | : “

“The Atlantic, ‘‘Is the FCC Dead?”’, p. . 29 (July, 1967) 34

J. Barron, Access to the P ess—A New First "Aineed:

| ment Right, 80 Harv: Rev. 1641 (1967) ....... 28

' Broadeasting (October 28, FEET Rive ie pi sanies cecwa.ll laa

Broadcasting (December 16, 1968) . Ot Renn rene 11

Broadcasting. (February 10, 1969) ........ eee eee 7,19

Broadcasting Yearbook 1968 ................00he06 7

Broadcasting Yearbook 1969 :....... es ete | oe

Broadcasting in America and the F.C.C.’s License

‘ Renewal Process: An Oklahoma Case ade 14 ,

RE TE Wa eens ewnle pines Wen ee Sq bk wes tawness 10

F. Cook, Radio Right—Hate Clubs of: the Air, The

. Nation — iseelts sepeceeecccecceeteecees LD.

_ Federal Communications Comthission, 27th Annual.

- Report (1961) viewerves SweeasseehessSes eeaeas. ee

" Federal Communications Commission, 28th Annual :

Pent TI <6 fioscd ids pss inde Syaeadwass 37

. Federal Communications Commission, 32nd Annual

Report Cg ere ee Se eT a re ees - 36

Federal Communications Commission, 33rd Annual

EE SEES Sica Wis bs cbkebaeaeonbakesaseint 7, 36

F. ‘W. Friendly, Due To Usrignabiinets Bayind Our |

Control (NewYork: Random House, 1967) . .11, 26, 28

N. Hickey, They Call. Themselves Patriots, =. Y¥. Guide

(April. Ss EN ee or pee Tree e+e ed, 19

Be Klapper, The Effects/of Mass Chaninundodibon (The

Free Press. 19607 .... Seer ee a enka ee 29

Letter to “Cullman Broadcasting Company, F.C.C. .

63-849 (September 18, 1963) eee rer eer. eer . 32

Letter to Honorable Oren Harris, FC. C. 63-851 at

_ (September 20, 1963) ...... a Hild cdeuneka a4 bee 8 32 -

R. MeNeill, The ‘ene Machine (New. York: Harper

& Row, 1968) :.,...... dius eieesateeuis 12, 20, = 31

' N. Minow, Equal Time (New York: Atheneum 1964) .

pee 93, rs

Newsweek, p. 80 (July 4, 1966) Pilea kali: we:

‘New York Times (January 14, en, ae eae 14

Note, An Alternative to the General Damage Award’:

__* for Defamation, 20 Stanford L. Rev. 504 (1968)... “B7

Opinion of Acting Atty. Genl. Donovan, 35 Op. Atty.

Gen. 126 (July 28, 1926) .................-. a 2

| 3 eae th | PAGE |

| Progress Report of the National Commission on the

~ Causes and Prevention of Violence (U. S. Gov-

ernment Printing Office, January 9, 1969) ...... 2. J

R. Shayon, Cleaning up the ‘‘Callin’’, Saturday Re-

| view. (February 24, 1968) ......... a ee 14,15 -

L. S. Stein, Editorializing. by Broadcast pe |

(Unpublished Ph.D. Dissertation, N.: Y. Univ.,

er 13> acer ea CNG ss uaaik © hs 6446.6 000 “eo 9

T. V:. Guide (January 18, 1964) ....... See ee 30

United States Department of Commerce, Third \Na-

tional Radio Conference (Washington, D. C.:

- U.S. Government Printing Office, 1924) -..... aa - ae

J. Wiggins, Freedom or Secrecy . (New York: Oxford

Univ: Press, 1964) ....... 0... 000s seteees ESE 31

Nos. 2 and 717

IN THE

Supreme Ger of the Heited States

OCTOBER TERM, 1968

eer: Srares or AMERICA AND FEDERAL

Communications Cointkission, Petitioners

Rap1o TELEVISION NEws Dmecrors Association,

ET AL., Respondents

Rep Lion Broapcoastine Co., Inc., er au., Petitioners,

3 | v. |

FrperaL Communications Commission, Respondent.

On Warts or CertTioRaRI 10 THE UNITED Srates Courts or

APPEALS FOR THE. District OF CoLUMBIA AND SEVENTH

Cracurts

Brief of: Office of Communication * the United Church

of Christ,

United Church Board for Homeland Ministri

Board of National Missions of the Unit

. Presbyterian Church in the U.S.A., \

National Division of the Methodist punee of

_ Missions, |

General Board of Christian Social Concerns oO

the. Methodist Church, .

The National Council of Churches—Broadcast- :

ing and Film Commission,

National Catholic Conference for Interracial

Justice, -

National Board of the Young Women’s. Chris-

tian Association of the U.S.A.

The American Jewish Committee,

National Citizens Committee for Broadcasting

and -

American Federation of Labor-Congress of In-

. dustrial Organizations, , Amici Curiae

° : . .

: . . . -

. ‘ }-

. -

‘

| Preliminary

This brief as amici curiae is subenitiod, with the consent

of the parties, by the organizations listed on the cover. -

They may be described as: .

(a) National instrumentalities, of Protestant and Greek

‘Orthodox churches. concerned with broadcasting and.

with service to racial nithorities and the under-—

privileged ;

(b) National organizations of persons of the Cheistinn

. and Jewish faiths concerned with social service and

the protection of racial and religious minorities ;

better broadcasting ; and

(d) A non-profit organization concerned with ieoheitioe

of the rights and interests of labor. |

' These organizations havé experience in broadcasting

and with its effects both as producers of programming on

religious and social issues and as participants in social

action in all parts of the United States. 3

/ - Pai

Background

The concept of fairness is as old as our system of

broadcasting.’ From the earliest days of radio, broadcast

licenses were reserved for those who proposed to serve the

broad range of community interests and were denied to

those who used their facilities for purely personal expres-

1 For an historical review of broadcast fairness, see U. S. Senate

- Committee on Commerce, Subcommittee on Communications, Fair-

ness Doctrine (Staff Report prepared by Robert Lowe), 90th ‘Cong. yt

2nd Sess., 1968. See also Leon Seymour Stein, “Editorializing by - -

Broadcast Licensees” (Unpublished Ph.D. _ Dissertation, New York

University, sted

sion. As early as 1929, in its Great Lakes isha? the

. Federal Radio Commission stated :

‘‘Broadcasting stations are licensed: to serve the: pub-

_ lie and not for the purpose of furthering the private .

or selfish interest of individuals or groups .of in-

dividuals. The standard. of public interest, con- —

venience, or necessity means is nothing” if it does not

mean this. Insofar-as a program consists of dis-

cussion of public questions, public interest requires

ample play for the free and fair competition of op-

posing views, and the Commission believes that the

principle applies . . . to all discussions of issues of

importance to the publie. mY.

- As early as 1931, the Commission ‘adie’ that use of a

public channel to make unfounded personal attacks was

not consistent witlr good broadcast service:

‘‘The Commission holds | no brief for any parties -

subjected to attacks through the medium of Station.

KGEF, but in almost every instance appearing. in the

record the attacks made by Shuler, and the methods

employed therefore, are certainly not in the interests ©

of the public or the rendition of a commendable broad-

casting service. The broadcasts of this party are filled

with misstatements of fact .and insinuations based

thereon. - . .. Surely, the use, in such a manner, of

one of the most powerful.mediums of furnishing in-

struction and entertainment to the public does not meet:

the statutory standard upon which the right to hold a

-liceense must be based. While the Commission does not

have the power of censorship, it does have the duty of

cense held and used in a manner such as that of the

applicant, there is a ‘potential licensee who is able,

37 F

3 * Great Lobes Broudcastiay Co. v. Federal Radio Commission,

_ determining whether the standard fixed by law has |

been or will be met by the use of a sea license.

Broadcasting facilities are limited. . For each li- -

2d 993 (D. C. Cir. 1030), reversed the Commission but

indicated approval of its ee as to programming.

Lng Sebel eel mae tN ready ec emanates remmnmeees

; . . 4 F

: ready and willing. to conduct his station in such’a man-

ner as to furnish a good broadcasting service.’

“Phe rule of raipneaa” eas refined- and_clarified in a

number of cases over the next. two decades. Consistent”

with the concept that the channels were to provide expres-

sion for the public and not for the station owners, it was

held that ‘‘the broadcaster cannot be an advocate’’, which

was taken to mean that he should not editorialize.‘

® FRC, Docket 1043, Trinity Methodist Church, South, KGEF

comm ; affirmed, Trinit, oye Church, South v. Federal Radio

ommission, 62 F. 2d 850 (D. C. Cir., 1932).

ayflower Broadcasting C orporation; 8 F.C.C. 333 (1941).

The fal e was:

“Under the American sieht of broadcasting it is clear that

' responsibility for the conduct of a broadcast station must rest

initially with the broadcaster. It is equally clear that with the

, limitations in frequencies inherent in the nature of radio, the

+ public interest can never be served by a dedication of any

broadcast facility to the support of his own partisan ends.

Radio can serve as an instrument of democracy only when de-

voted to the communication of information and the exchange

of ideas fairly and objectively presented.. A truly free radio

cannot be used to advocate the causes of the’licensee. It can-

not be used to support the candidacies of his friends.. It cannot

be devoted to the support of principles he happens to regard

most favorably. In brief, the broadcaster cannot be an ad- .

vocate.

- “Freedom of speech on the wn must be. broad enough to

provide fuil and equal opportunity for the presentation to the

_public of all sides of public issues. Indeed, as one licensed to

operate in a public domain the licensee has assumed the ob-

_ ligation of presenting all sides of important public questions,

fairly, objectively and without bias. The public: interest—not

the private—is paramount. These. requirements ‘are inherent

‘in the conception of public interest set up’ by the Communica-

tions Act as the criterion of regulation. And while the day to

day decisions applying these requirements are the licensee’s re-

sponsibility, the ultimate duty to review generally the coutse of __

conduct of the station over a period of time and to take ap-

S540)" action thereon is vested in the Commission.” (pp.

The ‘munzling” of the station owners was itronaty pro-

- tested and was reconsideted at length in the Mayflower

hearitigs." Finally, in 1949, the rule was revised and set

forth. in a comprehensive statement of Commission policy,

the ‘1949 Editorializing Report.’* This statement re-

versed the previous policy against editorializing by broad-

cast licensees, but coupled the right to editorialize with the .

duty to present alternative views. Since 1949, this —

has been known as the ‘‘Fairness Doctrine’’.’

Similarly, stations were permitted to make personal at-

tacks, but they were cautioned that:

‘‘. . . elementary considerations of fairness may dic

tate that time be allocated to a person or group which ~

has been specifically attacked over the station, where

otherwise no such obligation would exist’’.’

This duty to invite reply has become known as the sper.

sonal attack principle’’ of the Fairness Doctrine.

> Ty “reportitig the Equal-Time. Amendment to the Com-

~“fnunications Act in 1959, the Senate Committee took great

care to indicate its intent that the Fairness Doctrine

‘should remain in effect: :

“In recommending this legislation, ey committee does

not diminish or affect in any way Federal Commu- *

- nications Commission policy or existing law which

_ holds that a licensee’s statutory obligation to serve

the public interest is to include the broad encompass-

ing duty of providing a fair cross section of public:

affairs and matters of public controversy.’’ " (S. Rept.

562, 86th Cong. Ist Sess., p. sche :

11% ® Representatives of some » of the organizations submitting this.

brief participated in the Mayflower hearings in support of the rule .

of fairness.

1246, 25 P & F Radio Reg. "foot, (1949).

113 F.C.C. 1246, at p: 1252.

* 6

To make this point even clearer, a proviso was written

into Section 315 as follows:

‘Nothing in the foregoing sentence shall be,con- |

strued as relieving broadcasters, * * * from the obl?-

gation imposed upon them under this Act to operate

in the public interest and to afford reasonable ‘op-

~portunity for the discussion of conflicting views on .

issues of public importance.”’

The Conference Committee of the House and Senate

descri this as ‘‘a restatment of the basic policy of

the ‘standard of fairness’ which is imposed on broad-

casters under the Communication Act of'1934’’ (H. R. Rept.

No. 1069, 86th Cong., 1st Sess., 1959).

The 1949 Editorializing Report has remained Commis- -

sion policy without substantial change.’ ‘ Until aproen A ‘ ,

- has been accepted by the industry without much obj

- and with no legal challenges. However, the persona 4

tack rule has been reiterated and made more specific be-

cause of continued violations by some stations.’

ks Chairman Henry testified in July, 1963 that the Eéitorializing

Report “still: represents the Commission’s basic policy in this im-

portant area”. Hearings on Editorializing Practices before a Sub- :

committee of the House Committee on Interstate and Foreign Com-

merce 88th Cong., Ist Sess., 1963, p. 84° The Editorializing Report

was republished as an attachment to the Fairness Primer on July

Ist, 1964, 29 Fed. Reg. 10415. Apparently the Public Notice of

July 26, 1963, 28 Fed. "Res. 7962, and the Fairness Primer were a

response to criticism in the 1963 Congfessional hearings that the

Commission had not done enough to publicize the Fairness Doctrine.

*The Public Notice of July 26, 1963, 28 Fed. Reg. 7962. in-

cluded the statement’that -

“Several recent incidents suggest the desirability of calling ~

the attention of broadcast licensees to, the necessity for observ-

ance of the fairness doctrine stated by the Commission in its

opinion of -June 1, 1949 in Docket No. 8516. 7

- When it adopted the rule now being attacked, the Commission noted.

that despite the July 26, 1963 Public: Notice and the 1964 Fair-.

ness Primer and the Commission’ s rulings on the question,

“* * * the procedures specified have not always been followed,

"even when flagrant personal attacks have occurred in the con-

‘text of a program dealing with ‘a controversial issue. It is for

this reason that we now codify the procedures which licensees

_are required to follow in personal attack situations.”

Changes in the Broadcast industry

Increase in Channels

There have been dramatic changes in thé broadcasting

industry sinee 1949, including 4 considerable increase in

. the number of television stations and AM and FM radio.

stations.” x

It has boon siiepeadel that the i increase in ‘the number of

stations has resulted in such a diversity of program sources

that the Fairness Doctrine is no longer necessary. How-

\ ever, despite the increase in stations, almost. 2,000 com-

'\ munities-in the United States have only . one radio station

\ licensed to serve them arid 289 communities. have only one

licensed television station; of course, many communities

Ve none. oe

One of the requirements of a broadcast license is that —

the licensee provide public service to the community to.

which it is licensed, which should include local news cover-

age, public ‘service announcements. and reasonable oppor-

tunity for discussion of controversial issues of public im- . ~

portance in the service area. ‘Network sl auc In-

10 The number of. on-air commercial television pa ate has in-

creased from 69 to 626; educational television statiohs from 0 to |

127 ; commercial AM stations from 2,006 to 4,135; commercial FM — -

stations from 737 to 1,706, and educational FM stations from. 34 to ©

318. 33rd Annual Report, Federal Communications Commission,

Fiscal Year 1967. U. S. Government Printing. Office 1968. . -

11 An analyses of radio station listings reveals that there. are

' 1,279 communijes with a single AM station, 173 with a single FM .-

station and 278 with AM and FM stations operating under the same.

call letters. (An undetermined number of single AM-FM com-

binations progratn separately and operate under different call signs

_ but have interlocking ownership.) Broadcasting Yearbook 1968.

(Washington, D. C. Broadcast Publications, 1967). In general, in-

dependent FM stations are fimanciall y weak and cannot produce

much original programming. Of'405 such stations, only 115 re-

ported a profit "ee 1967. Out of 1,482 AM and AM/FM stations

in one-station communities, 417 reported: a loss for 1967. In two

station communities, 176 out of 513 — a loss. Broadcastings

- Feb. 10, 1968, p. 50

—

| quiry, Revert and ‘Statement of Policy, July 99, 1960,

F.C.C. 60-970. Although residents of a small community

: may receive signals from a number of AM stations, only

the station licensed to such community is likely to cover

local issues. The | egpee is true of television and FM. radio

stations ‘which ate fewer ~ number and have smaller

‘service areas.

of the AM stations iilionat only during daytime

hours. Many of them are so-called “‘rip and read’’ opera-~

tions which select their news reports from a wire service

and/ present little or no public affairs ws (see

footnote 22, below). |

Similarly, there is little dhvineity in the coverage of

local news and issues on television stations, particularly

in small communities. The economics of the industry is -

such that profitable operation is difficult without a network

affiliation. The networks, however, have a policy of grant-

ing affiliation only to stations in large communities and of

protecting them from competition with stations in or near

their service areas.” Independent stations find it difficult —

to operate profitably even in major markets“ and there

are relatively few of them.* Furthermore, networks give

8 preference in granting affiliation to owners: of AM af- |

filiates and multiple owners which tends to limit the com- -_

petitive effect of new stations.

12 See Network iat H. — 1297, 85 Cong. | 2d Sess., ”

pp. 195-198. |

38 [bid., pp. 216-17, 226-236:

* Ibid., ‘p. 197, Table 14. C

6 It was hoped that UHF stations could serve many areas out-

* ‘side major markets. However, the networks have refused to grant __

affiliations to UHF stations or have allowed them only programs

which are unacceptable to VHF affiliates (Ibid., pp. 220-226). This

refusal of affiliation occurs even where viewers ar¢ in the grade B

contour area of the VHF station or receive it cable —

* available only on a limited basis and at conser cost.

* Ibid., pp. 236-246, | #

ohne

Sisters. Ciaiataamnen- 92 Himajrenitale :

~ ‘The increase in the number of television stations has been ~

accompanied by a trend toward increased network control ©

over the production of programming: This trend was dis-

closed by the Federal Communications Commission’s Pro-

gram Inquiry (Docket No. 12782) begun in February, 1959.

The Commission found evidence that: ’

“|. network corporations, with the aequitssence of

their affiliates, have adopted. and pursued practices in

television, procurement and production through which

‘they have progressively achieved virtual domination of

television program markets. The result is. that the

three national network corporations not only in large

_ ameasure determine what the American people may see

. and hear during the hours when most Americans view

. television, but also would appear to have unnecessarily

and unduly foreclosed access to other sources of pro-.

gramming.’’*

The Report revéaled that the percentage of edeniad:

. ®

ently-provided’ programs in network prime-time schedules

declined from 32.8% in 1957 to 6.9% in 1964.% Moreover,

There has also been a substantial increase in network ~

participation in the syndication of programs, which increas-

ingly consist of ‘‘off-network’’ programs. According to the

Commission, ‘‘The first run syndication market appears to

have virtually disappeared.’’”°

‘The Commission has been considering since 1965 adoption

of a rule to restrict network: control of Programa, : in- An

” Television. Network Programming, F.C.C. 65-227, 4P&F

‘Radio Reg. 2d, pp. 1589, 1591. See also House Report. No. 281, 88th

- Cong. Ist: Sess., May 8, 1963. .

18 Ibid., p. 1600.

19 Tbid., p. 1599.

*° Ibid., p. 1606.

in accordance with established policies, networks produce et

. and own virtually all news and acs affairs programs in-

‘ éluded in network schedules.” ,

from the influence of sponsors and their

advertising agencies. There is little local public-affairs

programming on network affiliates and almost none in

prime-time hours \when the largest andience is available.”

_ [bid., See also P &F Radio Reg. Current Service, p. 53:601,

. 608n boat Ue wk 2s ;

22 A recent analysts of aad applications of Oklahoma broad-

cast licensees by F.C.C. Commissjoners Cox and Johnson concluded :

' “Of the 10 commercial television stations which submitted

renewal applications in the“ instant proceeding (which take. in

a total of more thari $16 millidn in gross revenues annually),

only one station devotes as .much as 2 hours a week to pro-

grams which can be classified as\‘local public affairs’ (out of

105 to 134 hours. per week of programming). Two stations

— between 1 and 2 hours to local\public affairs. Six stations

less than 1 hour. Two stations carry none at all...

ee of.the TV stations carry le than 8 hours of news

| \;

per week. hea

. “There is not4a the entire State a singe regularly. scheduled

prime time prograni~devoted to presentation, analysis, or dis-

cussion of controversial issues ¢ of pac i im ce in the State ,

.or in the community. iii

“There is not in the State a single. station wid carries as *

much as 1 hour per week of locally originated programming in

the prime viewing ‘hours, other than news, weather, and sports.

“Radio, although a fairly significant source of news and not :

infrequently of local news, provides almost literally no public .

affairs service at all other ‘than news.» With but a handful of

. exceptions, Oklahoma radio stations do not offer even a token

effort to serve as a forum for discussion of local issues of. public

_ imporfance. Broadcasting in ‘America.and the F.C.C.’s License

2s. Process: An: Oklahoma — Study, 14 F.C.C. 2d 1,

-1

a * * +

- “In 1962 and 1963, the Federal Communications Commission. _

held hearings on local television programming in Chicago and

:,’ Omaha. It was found that éven in the large cities, TV stations

originated relatively little programming of their own, and that

what local programming they’ did -put on consisted mostly of

news, es and sports.’ ™ (14 FAG me at p. 8).

>) ;

Sea

Documentaries and discussion programs on controver-

sial issues are increasingly selected by a handful of

television network executives, and rarely relate to local

issues.** Thus the increasing reliance of the public on tele-

vision programs for news and opinion and the decline in.

the number of metropolitan daily newspapers havé not

produced diversity but have resulted in a centralization: —

of control over communication on: public questions which

is entirely without precedent in American history:

y Compliance With the F airness Doctrine |

With rare exceptions, the broadcast networks have com-

plied with the Fairness Doctrine. Partly, this is because

the networks provide programming for the widest possible

national audience, including a broad spectrum of économic,

racial, political and geographic interests. They therefore

tend to avoid programming which is controversial enough

- to irritate any substantial group. Network documentaries

a! According to the pan head of CBS News, he had- to fight

a continual battle with President Frank Stanton over coverage of the -

Vietnam war because of Stanton’s “concern that too much ‘dove-

hawk’ talk unsteadied the hand of the Commander in Chief”. Due

to Circumstanées Beyond Our Control, Friendly; Fred W., Random

House, New- York, 1967 page 267. glhis disptite culminated in

'Friendly’s resignation after the presentation of a fifth rerun of “I

Love Lucy” instead of Senate Committee hearings on Vietnam (ibid., .

p. 239): According to Friendly, decisions on equal time demands are _

not made by CBS network news directors, but by senior network |

executives and reflect political: considerations, _ Ibid., pp. 82-83, 91-92.

** According to Broadcasting, Dec. 16, 1968, p- 30, the 1 Report |

_ Of the President's Task Force. on Communications Policy empha-.

sizes that Federal régulatory dari has failed to a tele-

vision output.

‘ on controversial issues reached a. peak in - 1963, following }

_ the quiz scandals, but have declined since.”

Fairness. Doctrine complaints against networks are ex--

‘ tremely rare. An analysis of complaints filed with the

' FC.C during the period from July 1, 1965 to June 30,

1966: indicated that = all the iat coal were against

local programming.” : |

‘Out of 4 program types against which complaints were

made, the three network program types ranked 12th, 13th

and 14th: :

Jo of Total

Complaints .

— Sickeiiaitins Se eee 1.125%

Network news .......... Ne ee 0.875%

Network panel or discussion ......... 0.875%

The most complained against program types were:

Syndicated program series’ .......... . 21.25%

CE CFS UCNSE Ka he den ec chess ses 19.25%

| Editorials ta eh wh Na elees ¥'s errr .. ,L ee

> Local News .......... ac Han'vsin.es eevee 10.25%

Out of 800 complaints, only 173: involved personal at-

tacks and none of these was a complaint against a net-

work.” x

25 William S. Paley, CBS Board Chairman, is quoted as telling

Edward R. Murrow, when Murrow’s “See It Now” was discon-.

tinued, “I. don’t want this constant stomach ache every time you -

do a controversial subject”. Friendly, op. cit., p. 92.

Newton Minow said the networks “wagt provocative programs

that don’t provoke anybody” and the advertising agencies “want a

strong, hard-hitting, non-controvérsial show that, won’t offend any-

body—and above all no gloom.” Minow, Newton, “Equal Time”

Atheneum, 1964, p. :92. Bee also the chapter “(Documentaries and

. Special Events” in McNeill, Robert, Fhe People Machine, on

& Row, New York, 1968, pp. 75-91.

** Fairness Doctrine, supra, pp. 64-74.

. 1 Tbid., p. 68, Table III. - There were no political editorial com-

plaints against networks because all networks have a policy against

editorials of any kind.

To the best of our knowledge, all reported cases in-.

yolving Fairness. Doctrine complaints (including personal

attacks) were against, local stations, none of which was in

a major market.* Except for the Red Lion case all have

involved complaints of racist programming and personal

attacks.

The “Fourth Network’””

It is no accident that Fairness Doctrine complaints are

primarily against stations in small communities. Such

- stations are often marginally profitable and sell time at

low rates. Large amounts of loeal radio and television time

are purchased by distributors of syndicated programs.

Programs are recorded on tape and ‘‘bicycled’’ from one

28 Office of Communication v. F.C.C., 359 F, 2d 994 (D. C. Cir.

1966), reversing, In re Lamar Life Broadcasting Co., 1 F.C.C. 2d

- 1484, 5 P & F Radio Reg. 2d 205, on rehearing 14 F.C.C. 2d 431,

13 P.& F Radio Reg: 2d 769 (1968). Red Lion Broadcasting Co. v.

Federal Communications Commission, 381 F.2d 908 ( D.C. Cir..

; 1967), Anti-Defamation League v. F.C.C., 14-P & F Radio Reg. —

2d 2051, affirming Station KTYM, 7 P & F Radio Reg. 2d 595 .

(1968); In re Brandywine-Main Line Radio Inc. (WXUR), 14

FP & F Radio Reg. 2d 1051 (1968). Two other important cases have

considered the constitutionality of the Fairness Doctrine more ab--

stractly, ic. the Radio Television News Directors case now before

this Court and Banzhaf v. Federal Communications Commission,

14 RR 2d 2061 (1968). Of these, the Banzhaf case was initiated

by a complaint .against a television station (WCBS) in New York

City and was based upon specific cigarette commercials. However,

. the Commission’s.ruling embraced all cigarette commercials. The

Radio Télevision News Directors case does not involve any cém*

plaint against anyone. ae

20“. . large parts of the U. S. are awash in a diet of far-

right broadcasting. Urban listeners seldom-hear the broadcasts or,

if they do, quickly-tune out. . But in those areas known in the

broadcast trade as ‘the boondocks,’ the sounds of the far right are,

in effect, a fourth network.” (Newsweek, July 4, 1966, p. 79)

station to another. Typically, the time is sold by the com- - |

- mercial department and the programming is neither pre-

viewed nor monitored.

The majority of these ‘syndicated programs are “spon-

_ sored by so-called ‘‘non-profit’’ organizations established

by affluent persons. They are used for the broadcasting of

the sponsor’s political and social views. Typically, these

programs contain a heavy diet of diatribe and abuse. The,

‘most frequent subjects for attack are Negroes,. Jews,

Catholics, indigents, foreigners, and holders of ‘‘left-wing’”

views. A common philosophy of such programming is

that the groups under attack have infiltrated -and sub-

verted. the traditional institutions of American life and

> are: destroying America,

According to Jack Gould of the New York Times:

‘‘As any random sampler of radio stations can read-

ily attest, the airwaves are literally burdened by thou-

sands of programs, often bankrolled by individuals of

‘substantial means and extremely conservative outlook, -

which have little to do with journalistic values. Radio

stations, eager for additional revenue, accept the

perorations of these spokesmen almost blindly. The

news departments of such stations frequently are not

even involved; the matter is regarded as a straight

sale of time. 1790

In 1964, ‘<The Hate Clubs of the Air [were] spewing. out

a minimum of 6,600 broadcasts a week, carried by more

- than 1,300 radio ond television stations—nearly one out of

_ every five in the nation.’’ Radio. Right—Hate. Clubs of the

Air, Fred J. Cook, The Nation, May. 25, 1964, page 523.

3 New York Times, January 14, 1967.

15.

By 1967,- according to TV Guide, *‘. . . the strident

voices of the so-called Radical Right . . . are now heard on

more than 10,000 radio and television broadcasts each week |

in 50 states’’. They Call Themselves Patriots, Neil Hickey,

- TV Guide, April 15, 1967, page 14: A survey recently com-

pleted by the. Office of Communication indicates that

‘call-in’? radio programs are also widely used by right-

wing sponsors and commentators, especially in the Moun-

‘tain States, to promote extremist views and oppose liberal

legislators. (See.‘‘Cleaning up the ‘Call-in’ ’’, Shayon,

Robert Lewis, Saturday Review, Feb. 24, 1968, p. 56.

_ Examples of the programming of such stations -appear _

in the initial decision on the renewal application of station

WXUR. The intervenors in that case monitored and.

transcribed about 65-alleged personal attacks in one week

and. supplemented this. list with many dthers.. These

attacks occurred on. local programs and on a number: of

syndicated programs, including the ‘‘Twentieth Century |

Reformation Hour,’’ ‘‘Life Line,’? ‘‘Manion Forum’’

‘‘Behind the Headlines,”’ “*Commentary,’’ ‘‘Independent

American,’’ ‘‘The Dan ‘Smoot Report,’’ ‘‘Church League

of America,’’ ‘‘Christian Crusade,’’ and later, Richard

~Cotten’s ‘‘Conservative Viewpoint’’.™ .

Although not all of the critical remarks could be classi-

fied as ‘‘personal attacks’’ within the meaning of the Com-

mission rule, some examples may indicate their flavor:

Senator\ Clark’s ‘‘henchmen’’ were charged with

threatening to put someone to sleep; the American

_ Civil Liberties Union was described as ‘‘a Communist

*1“Christian Crusade” gave rise to the personal attack in the

Red Lion case. “Conservative Viewpoint” included the personal

attack in the KTYM case.

front or transmission belt organization’’; Dr. Frank-

lin Littell was called ‘‘the left-wing President of the

_ gestapo-like Institute for American Demdtracy’’ and

he was referred to as ‘plainly and disgustingly sar-

castic, rude, discourteous, insolent, arrogant, bigoted

and intolerant’’.. Dore Schary was described as hav-

ing ‘‘a public record of affiliation with. Communist

fronts,’’ the Methodist Board of Social Concerns was

described as ‘‘active in the Methodist Federation for

Social Action (a cited Communist front). "9 s

There were no invitations to answer any of ties eom-

’ ments.*?

In a license renewal application involving television sta-

tion WLBT in Jackson, Mississippi, the Hearing Exami- |

ner refused even to hear evidence on the following matters,

_among others:

A so-called ‘‘Freedom Book Store’’, carrying segre-

gationist publications, was operated ‘on the station

premises., The station telecast. several thousand free

announcements for this -book store during the renewal ~ .

period, with no announcements for any group holding ~

opposing views. :

2 The a Examiner held that “only for the most flagrant

of violations should WXUR be denied its renewal of license”. He

found that on balance, WXUR “performed what would normally

be considered a wholesome service in providing an outlet for con-

‘ trasting viewpoints on a wide variety of subjects” and that the

renewal application should be granted. In Re Brandywine-Main

Line Radio Inc., 14 P & F Radio ey 2d 1541. |

33 Office of Communication v. F.C,C., 359 F. 2d 994 (D. C. Cir.

1966), on rehearing, Jn re Lamar Life Broadcasting Co., 14 F.C.C. °

2d 431, P & F Radio Reg. 2d 769 (1968).

Local public affairs programming consisted almost

entirely of right-wing programs, including the Citi- ©

zens’ Council Forum, the Dan Smoot Report, Life

Line, Freedom University of the Air, the Christian

Anti-Communist Crusade, and the programs of Patri-

otic American Youth, the John Birch Society, and

Women for Constitutional Government.

Paid spot announcements of the Citizens’ Council

were broadcast without reply, including the following

statements, among others:

_ “You’re seeing published proof that the Communists

are directing the integration drive in Mississippi... .”’

‘‘The headlines’ tell the story : . . the Communists

are leading the fight to integrate Mississippi’’.

‘‘Recent news reports show how the Communists are

trying to raise the race question in Mississippi!’’

There was an alleged false news report that fed-

eral officers were coming to arrest the Governor. This

was part of a Citizens Council stratagem to surround

the Governor’s Mansion with an armed mob so that .

he would not give in to a court order.

Evidence also showed that inflammatory editorials were

broadcast calling upon television viewers to resist court

orders directing the integration of the University of Mis-

sissippi. These editorials were follewed by, riots and loss

of life.

‘Along with this wdnlenesl iaiunainiion were viola-

tions of the personal attack principle. For example, a

seven-program series called “‘Meet the Candidates’’ in- -

cluded a repeated question about the situation at Tougaloo

College, which was then the only accredited college in Mis-

_sissippi open to Negroes. Responses such as the following

{

were elicited :

*‘One word deseribes, it—horrfble, We are nursing the

viper to our breast. One man has said that there is

not a Communist in the whole State of Mississippi and

‘they are teeming up there at Tougaloo. They are

working full force, day and night, and some of the

most solid citizens sit back and say;.‘Oh, no, wé don’t

have any Communist’, and then ad insult to ‘injury,

- anyone who disputes them i is called a witch hunter and

/ awild eyed saboteur, and other such words.’”

‘9

It was not denied that when the President of re

College called the station manager to protest, and asked

for a-transcript, he was falsely informed that the station

had no record of the program. /

Syndicated | programs’ pregenting different views are

" available from sucH®¥rganizations as the United Nations,

the National Council of Churches, the AFL-CIO and others.

However, these organizations do not ordinarily purchase

- time from the stations\and their programs have little cir-

‘culation in the ‘Fourth Network’’.

Stations which carry ‘the “hate clubs?” attract audiences

of like-minded listeners, who tend ‘to take over the ‘‘open

mike’’ shows and to control the choice of local announcers ~

and commentators. Such stations vg presen of

communication for only one segment o ‘opinion. If

such stations were used only for attacks on national insti-

tutions, they would be relatively harmless but they take an

active role in the discussion of local issues, such as school

board elections, education#l budgets, welfare policy, and

selective service procedures.’ Since such stations{are often

the only stations licensed to their communities, they can

create an atmosphere. in local communities like the **Me-

Carthy Era’’ in Washington.

The size and influence of the “Fourth Network”? should

not be underestimated. The leading program series, Rev-

: c& 2

erend MaclIntire’s ‘Twentieth Century Reformation

Hour”? is broadcast daily by about 635 stations,“ and many

similar program series are broadcast on hundreds of

stations. oor ee,

ape ‘Summary of Views |

The various ‘broadcast parties argued: below that the

Fairness Doctrine, including the personal attack principle, .

. inhibits free. and vigorous debate. There was no sub-

stantial evidence submitted to the Commission in its rule-

making proceedings that the Doctrine had this effect. The

_ organizations submitting this brief’ believe that the most

_ important part of the Fairness Doctrine is its emphasis on

the affirmative duty of a licenses to cover controversial —

issues of public. importance. Unless this duty is enforced

by law, the great potential of broadcasting as an instru-

ment for free expression of ideas will never be exploited.

‘Left to their own preferences, abe broadcast networks

and most licensees would present a negligible amount of

Bove affairs programming and such programming would

even more bland and innocuous than present program-

ming. Since broadcasting. has tended to supplant print

‘ media, the end effect of ‘‘freedom for broadcasters’’

would be less debate than we now have, and less than ‘we

knew before broadcasting began.

The Doctrine’s requirement that all sides be- cea

is rarely invoked against networks, but in view of broad-

casting’s limited diversity of program sources, it is very

necessary. Even if there were no Fairness Doctrine,-the

networks would have to follow a policy of- fairness be-

cause the public and Congress would not tolerate one-sided

programming from organizations having the unprecedented

% TV Guide, April 15, 1967, p. 15. This circulation should be

compared with the number of stations affiliated with each of the net-

works: NBC television—201, NBC radio—221, CBS television—

192, CBS radio—244, ABC television—153, “ABC radio (four

sub-networks )—900, Mutual — Source : ee

Yearbook 1969, PP. E6-E16,.

20° 7

concentration of power over elites affairs ee

which the three networks have today.”

“ The personal attack principle and the “nities Attack

and’ Political Editoria] Rule have virtually no application

to network programming since networks never editorialize

and almost never present personal attacks as that term is

defined in the rule. However, the principle and Rule, if

"© enforced, could serve as a means of access to local broad-

cast media for members of: minority groups, and holders

of minority views. Controversial ideas are heard in broad-

casting today principally on small stations in rural areas

where there is little or no diversity-of media. For the most’

part, what they present is not robust debate but one-sided

abuse, and unanswered it has little social utility. ‘The

organizations sponsoring this brief believe that the per-

‘+ gonal attack principle does not curtail discussion, but pro-

' vides a means 8 by —_ all points of view can get a hearing.

- ARGUMENT

POINT 1

‘The First Amendment to the Constitution not only

permits but requires that the Commission act so as to

assure fair use of the public airways.

. Even prior to the Radio Act of 1927, it was recognized

that the scarcity of radio channels required that they be

\ used only for worthwhile programming and that among

“~~ the important uses:were instruction and discussion of

a Very often the Fairness Doctrine is twisted and distorted by

\, broadcasters’ to create an excuse for avoiding programs which

ight irritate powerful groups.. McNeill, op: cit., pp. 268-271.

As McNeill, an experienced ex-broadcaster put it, “Viewed posi- en |,

tively, the Doctrine can be regarded as a stimulus to a bolder edi- \"

torial policy and a protection against outside pressures. Revoking (

a as’ rae d broadcasters advocate, would be unlikely” to result in

"Wicking yey expressions of editorial opinion”. Ibid. p. 281.

“ ai

rness Doctrine will not strengthen TV news cover-

age. so is about the only. quality in broadcast journalism

which makes it* editorially oupestor to print”. Ibid. p. 291.

social hichiame, In 1924, Secretary of Commerce ‘Herbert

Hoover stated that, : Bis. Dm

‘the value of this great system does not lie slaty

in .its efficiency. Its worth depends on the use

‘that is made of it. It is not the ability to transmit,

but the cHaracter of whgt is transmitted that really

counts . . . For the first time in history we have

available to us the ability to communicate simultane- _

ously with millions of our fellowmen; to furnish en-

_ tertainment, instruction, widening of vision of national

problems and national events. An obligation rests upon

us to see that it is devoted to real service and to de-

velop material that is transmitted into that which is _

really worthwhile. . .?™ + © d

During this early period, radio stations were iii

rapidly under licenses granted by the Secretary of Cém-

merce. Between March and November of 1922, the number

increased from 60 to 564 with the Secretary attempting

to review program proposals and to assign frequencies in

* such manner as to protect the public interest. In April,

1926, it was held that the Secretary had no discretion to

refuse radio station licenses under proper applications.”

The result was’a race for channels which continued until

the enactment of the Radio Act of 1927. This Act created

‘the Federal Radio Commission and made it clear that the

Commission need not grant a license unless it is satisfied

that ‘‘the public interest, convenience and necessity’’ would ,,,

be served thereby. This phrase was universally under-

— to inelude the right to consider proposed program

nt-an@ to review past programming. Thus, the 1929.

Ate of the Standing Committee on Radio Law of the.

American Bar Association argued in substance that “the

*° Third National Radio Conference, U. S. Department of Com-

merce Recommendations for Regulation —— Acopersimsent

Printing Office, 1924), pp. 2-3.

87 U.S. v. Zenith Radio Corp. et al., ‘12 F. 2d 614 (N. D. UL

926); Opinion of Acting Atty. Genl. Donovan, July, 28, 1926, >

im a Gen.. 126.

rc “number of persons who may simultaneously engage in

radio communication is rigidly limited by . physical laws. .

\ Therefore, the licensing authority must have* the power

to determine. the proportion of the radio spectrum -as-

signed to any given type of service, to review its use by.

less - worthy Services, and to alter or replace the less ©

-worthy existing services with more ‘worthy services. ’’**

: Aimong the first actions of the new: Commission was its

“General Order No. 32, addressed: to 164 stations, which

stated that it was ‘not satisfied that public interest, con- ‘

~ venience ,or necessity’? would be served by granting’ their

) applications for renewal: And in its first review of the

mew ‘public interest” criterion for licensing,:this Court

stated that ‘‘the requirement is to be inte reted by its

context, by the nature of radio tre © smission. and reception,

; by the scope, eharacter and quality of services. . .’’”

| Again’, in National Broadcasting Co. v. United States

the Court stated:

“Freedom of utterance is abridged ‘to many he

wish to use the limited facilities of radio. Unlike

other modes of expression, radio inherently is not

available to all, That is its unique characteristic, and:

that is why,- unlike other modes of. expression, it is .

subject to governmental. regulation.“ |

"Thus. it has always been thought . that the licenses to

. owners of broadcast stations could be conditioned on good |

—_—_

= Paraphraied in Stein, op. cit., p. 59.

8° Federal Radio Commission v. Nélson Bros, Bond ond Mortgage...

Co., 289 U. S. 266, 285 (1933). .

_* 4319 U.:S, 190, 216. (1943), ‘See dlso Note, “Governmental

-Regulation of* the Program Content of Television Broadcasting,”

19 G.W.L. Rev. 312, 31 17 (1950) and Note, ov. for (1 of Pro- -

gram ‘Content by the FCC,” 77 Harv. L. Rev. 701 (1964) and

numerous cases ‘cited therein.

‘The scarcity of channels has increased since the NBE€ decision, 3

- (Footnote continued on following page)

_ service, and that in this sense, broadcasters were unlike

publishers in print, who could: be as good or bad as they.

liked. The extent to- which a station has been made avail-

able for coverage of public issues «has always been one

measure of the quality of broadcast service.

In selecting among license applicants, the Cocennineiesi

considers not merely the program plans, but the character _

and. financial” responsibility of the applicants: These

criteria, when taken -with the criteria used by networks in “

granting affiliation and by advertisers in purchasing time,

tend to limit licenses to persons of financial standing and

established records of commercial success. If there were

no element of scarcity, the licensing of important media

for speech exclusively to such persons would surely vio-

late the First Amendment. And given the practical neces-.

_. sity of this system, surely the free speech rights of those

deprived of licenses must. be protected to the maximum

_ extent practicable.

- The licensing of instrumentalities of speech and public

assembly’ has . many timés been held to be irreconcilable

with the First Amendment. See, for example, Lovell v.

Griffin, 303 U. S. 444 (1937); Jones v. Opelika, 316 U. S.

584, 600 (1942), dissents ——e by the Court in 319-U. S.

103.

(Footnote continued frum previous page)

and this led former Commission Chairman Newton’ Minow, to write

as recently as 1964: :; |

“A television channel iS Sica s most scarce natural re-

source: As many as'a dozen applicants, plead for the privilege «

of using one channel. And becauSe television channels are so

scarce, because they can be used by such”a small percentage of © a

those who would like to have channels entrusted to them, -their

allocation and the supervision of their use rests with the federal

- government. Thus the government, not by choice but by absolute

necessity, is ultimately responsible for the effect this medium

has on the public.” Minow, Newton, Equal Time, Atheneum,

. 1964, p. viii. ee pa 7

"Where licensing i is | necessary, the licensee must make the

facilities available to all views. Kissinger v. New York

City Transit Authority, 274 F. Supp. 438 (SDNY 1967)

((Anti-Vietnam War subway: posters). Public facilities

_ cannot be made available to some and not to all. Brown v.

State of Louisiana, 383 U. S. 131, 143 (1966) ; East Meadow.

Community Concerts Association v. The Board of Educa-

tion, 18 N. Y. 2d 129, 219.N. E. 2d 172 (1966), after re-

mand, 19 N. Y. 2d 605, 224 N. BE. 2d 888 (1967). °

In effect, the government: has delegated the power. to

* control access to the public channels to a limited group

of private censors.** In controlling use of the channels to

__ preserve program quality and to prevent interference, the

government must regulate these private censors to assure

that they grant access to all views, even if sustaining time

is necessary. .

The idea ‘that a financial burden may be imposed upon

the exercise of First Amendment rights has been rejected

by: this Court. Jones v..Opelika, supra; Cf. Follet v. Mc-

Cormick, 321.U. S. 573 Re) Murdock v. Pennsylvania,

319 U. S. 105 (1943).

In Foallet v. McCormick, the, ‘Court reiterated that: \

‘‘the exaction of. a. tax as a condition to the exercise

of the great liberty guaranteed by the First Amend-

- ment is as obnoxious * * * as.the imposition of censor-

-ship or. a previous \restraint.’’ (P. o77) )

As the Court pointed out in that ae (which involved the

sale of religious literature) ‘‘freedom of religion is not |

- merely reserved for those with a a long purse.”’

om Invaddressing the National Association of Broadcasters, Com-

-missioner, Robert E.. Lee. recently stated a “station proceeds at its

peril if it does. not know what is coming down the line. The job of |

the station is to censor and if it is doing its job, it censors every ™

OT: 2 —_— Oct.:28, 1968, p. 63.

‘In the ease of Marsh v. Alabama, 326 U. ‘Ss. ‘501 (1946),

this Court made it clear that private ownership or control

over property usually available for speech would not be

permitted to impair free speech rights. At issue there was.

the right of the public to distribute literature on the streets

of a company town. It is significant that there the private

owner held far more than a temporary license in the facili- ~

ties, it owned them outright, but it did not escape the duty

of permitting their general use for speech.

The question here, therefore, is not whether the Com-

mission ‘might inhibit the station owners,’ ‘freedom of

speech’’. It is whether the govérnment may grant a sta-

tion owner the right to censor speech over a public channel

- and deny an ordinary citizen access to the channel even

when: he has been attacked. To put this another way, are

the free speech rights of the station owner so precious that

ordinary citizens must be sais completely for fear of -

inhibiting himt

‘The Red Lion decision rests on the conclusion that both .

station owners and citizens have free speech rights and

both should be’ implemented

“after having fsidepeiidenniy selected the controversial

issue and- having selected the spokesman for the pres-

entation of the issue in accord with their unrestricted

programming, the Doctrine, rather than limiting the

petitioner’s right of free speech, recognizes and en-

_ forces the free speech right of. the victim of any per-

sonal attack made during the broadcast.’

The language of Judge Learned Hand in upholding the -

Chain Broadcasting Rules is apt:

‘<The’ Coinmission does therefore coerce ‘their [the

licensees] choice and their freedom; and perhaps, if

the public interest in whose name this was done were

. other than the interest in free speech itself, we should

: have a problem under the First Amendment; ‘we might

*? 381 F. 2d 908, 923 (D. C. Cir. 1967).

26 aia

have. to say whether the interest protected, however

~ vital; could stand against the — right. But —

that is ‘not the case. The-interests which the regula

_ tions seek-to protect are the very interests which the

First Amendment itself protects . } ..”? National

Broadcasting Co. v. United States, 47\F. Supe. 940,

‘946 (SDNY, 1942) (emphasis ours). \

J adie! Hand went on to point out that the primary First

Amendment rights were those of the public.

The time-tested rationale for. the ‘right. of a minority

to express abhorrent thoughts is that the best means of

refuting obnoxious doctrine is competition with opposing

ideas. It is the availability of a reply which makes tolerable —

the ‘protection of the origmal utterance..This principle is

illustrated by the recent KTYM decision.’ In that case,

objections were filed to a renewal of license, alleging that

the station had broadcast a series of anti-Semitic pro-

grams containing deliberate or recklessly false allegations

_ against Jewish persons and organizations.

The Commission’ renewed the license without a hearing, -

expressly declining to put-in issue the falsity of the mate-

rial or whether the broadcasts were in the public interest, ©

eis : C -

«We do not hold that els an or any seit

broadcasts, were in the public interest, but rather, that

_ it is in the public interest. to have free speech on all

_ subjects on licensed broadcast facilities provided only

that all viewpoints are afforded a fair and equal op-

— for expression. ase

i. ™ Complaint of Anit-Diteintilion League of B'nai B’rith against

Station KTYM, 7 P & F Radio-Reg. 2d 595, 587 (1966), affirmed

sho, Anti-Defamation League v. F.C.C:, 14 P'& F Radio Reg.

2d 2051 (1968). In our view repeated programming of. this kind

_ with no serious effort to present alternative views is not in the,

public interest, even though opportunty to answer “‘personal attacks”

. is granted.

: 7

. Since the Commission must find that KTYM’s program

service is in the public interest, the Commission can escape.

responsibility for its statements only if it ensures that the

channel i is available to all views.

If the television or radio service available in all or most

service areas provided a reasonable cross-section of opin- -

ion on local and national issues, it might be argued that

the public interest would’ be satisfied by presenting any

. public affairs programming, even if abusive and one-sided. | .

But almost no-public affairs programming is provided in

sustaining time outside large cities. Paid time is monopo-

lized by the views of a relatively small group of wealthy

persons. Unless access is assured to all elements of the

community, particularly racial.minorities and :the poor,

broadcast freedom will remain freedom for the wealthy.

- Equal access to the media has never been more impor-.

tant. See the recent Progress Report‘of the National Com-

mission on the Causes and Prevention of Violence (Janu-_

ary 9, 1969): a |

- “The media in this country have inition a tradi-

tion of being a forum for the presentation of divergent

views, a. market place of ideas. What are the criteria

for access to the publié throigh the media today? The

question is important for the study of violence, be-

cause one of the minimum requirements for non-violent

| resolution of- divisive. social issues is that interested

parties be given an opportunity to be heard. In a dem-

ocratic society where ultimate power resides in the peo- .

ple, access ‘to the mass media i essential for groups

desiring peaceful social change. If important, discon-

~ be heard, subsequent resort to violence by these groups

may perhaps be expected. Moreover, if a high value

seems to be placed by the media on conflict and drama,

perhaps to attract the large audiences necessary to

economic well-being this may be a positive incentive.

for groups to engage in violence. Violence itself may

thus become a medium of communication, a means of

- access to.the market place of ideas.’’ (p. A-40)*

The Metropolitan Newspaper Analogy,

~~ The broadcasters have strenuously argued below and

* lsewhere that broadcast stations should be constitutionally

-indistinguishable from metropolitan newspapers.“

However, aside from the differences inherent in a licens-

ing system, there are many imperfections in this analogy.

_-Broadcast stations, particularly television stations,’ have .

_ 44 See also Barron, Jerome, “Access to the Press—A New First -

“Amendment Right”, 80 Harvard Law Review 1641 - (1967).

_*5 As stated by Mr. Minow in addressing the Conference on

’ Freedom and Responsibility.in Broadcasting, at Northwestern Uni-

versity School of Law on August te

* “After the issuance of the Blue Book, the NAB urged Congress

to amend the Communications Act'and give radio the same

degree of freedom from governmental regulation of content as

newspapers. In the hearings before the Senate Interstate and

Foreign Commerce Committee on the matter (S. 1333, 80th

Congress, 1st’ Sess.), Senator Wallace White, the Committee

Chairman and one of the ‘fathers’ of the Communications Act,

said that ‘there is a vast difference in principle between’ the

absolute right of anyone who wants to go into the newspaper °

buSiness, and the necessarily limited right to operate a broad-

casting station’ (p. 120). He stated (p. 126): ‘I do not accept

in any degree that there is no difference between the power of

Government with respect to newspapers and the power of Gov-

ernment with respect to radio communications . . . If you

[radio people] are placing your feet on that foundation, Peg:

are just indulging in dreams. Because Congress will not stand, ~

in the long run, for any such interpretation.’ Other Senators

were equally critical. Senator Edwin Johnson declared that the

notion that ‘radio presents a direct analogy to the press’ is ‘as

fat-fetched as comparing an elephant to a flea.’” ommuaiede

Op. cit., pp. —)

; a 29

become primarily vehicles for entertainment rather than

for news, information and discussion. As indicated above,

the volumé of controversial material in broadcasting is rela-

tively small. Furthermore, the diversity of sources in the

print media is vastly greater when account is taken of the

multiplicity of trade papers, magazines, books, pamphlets,

newsletters, hand bills,and the like. =

It has been suggested that the broadcast media compete —

with the print media; and therefore, simply add to the

diversity of sources. In fact, they have decimated the

print media. Except for an audience of highly literate

persons théy are not really comparable. For vast elements

of the population who do not seek to inform themselves

about controversial public issues, the broadcast media are

the only effective means.of communication. |

The multi-sensory effect of television breaks through to

this group. The appearance of a familiar personality

with an authoritative manner and illustrative pictures

reaches a different and larger audience than printed sym-

bols which require effort to understand and analyze,’

communicating advertising messages (including political

advertising)** is the primary cause of the decline of metro-

politan newspapers. - as i

46 An example of the conflict between the entertainment,and pub-

_ fic information functions of broadcasting was the CBS decision to

delay presentation of a speech by the-President so as not to interfere

with prime time programming. Friendly, op. cit., pp. 251-2.

‘7 Klapper, Joseph T., The Effects of Mass Communication, The

Free Press, 1960, pp. 106-112. As the Court of Appeals said in

Banzhaf, “It is difficult to calculate the subliminal impact of this

pervasive propaganda, which may be heard, if not listened to, but

it may be reasonably thought greater than the impact of the writ-

ten word” (14 P & F Radio Reg. 2d at p. 2087). ears

_ * The expenditures for “TV and radio” in the 1964 Republican

presidential campaign were ten times the expenditures. for “News-

paper and magazine ads”. About 85% of Governor Rockefeller’s

media expenditures in the 1966 gubernatorial election were for tele-

vision and radio. McNeill, op. cit., pp. 232, 234. There has been.

a steady increase in the use of non-rational political spot announce-

ments. Jbid., pp. 182-227. |

(90

‘ius fundamental difference is that a newspaper or

magazine is a random access device from which one‘ can ~

_ select the sports, the comics or the editorials, while a broad-

‘east program is a continuum from which one takes all or

nothing. Broadcasters therefare tend to direct program-

ming to the broadest possible audience and to give little

service to minority tastes and needs. A metropolitan news-

paper can set aside considerable space for minority inter-

ests (e.g., opera, ballet, bridge, chess, shipping, antiques,

fashions, art,,food, travel), without pressing such material

on the majority, or losing mass circulation. Television’s

need to retain the mass audience governs all its program-

ming including public affairs programs. Thus, in Jack-

son, Mississippi, a television station may avoid local pro-

gramming of special interest to the substantial Negro

minority for fear of antagonizing the audience at which its

advertising is principally directed.” The networks permit

Negroes to appear but only in a way which is acceptable

or interesting to their principal audienge.” Television sta-_

tions rarely present programming which will bore or offend

the majority. This — limits wicca of view. The

participated on station WLBT (Jackson, Mississippi ) was a gospel

‘singing show at 6:45 AM Sunday morning.~ The statioh advised

the Commission that it had a policy against programs which discussed

integration or segregation. Office of C ommunication v v. F. C. C., 7”

F, 2d 994 (D C Cir., 1966).

°° Thus, George Scott, one of des actors in East Side—W est Side, .

asserted i in connection with alleged network censorship :

“There was constant blue-penciling of. material by the Pro-

gram Practices Department of CBS. . In.a segment called

“No Hiding Place,’ a story about block-busting by Gpscrupulous *

real-estate operators, there was a scene in which I was to ask

a colored woman—played by Ruby Dee, who is herself a mar-

velously bright woman—to dance. The scene was edited out of

‘the script by CBS. I insisted that it be put back in. It was, and

we shot it. Then it was cut out of the footage by the network.”

TV Guide, Jan. 18, 1964, pp. 18, 21.

“

31.

dominance of networks “over broadcast content is far

greater than the effect of wire services on newspapers.”

A network news program commands an audience of six

to sixteen million persons.” By comparison, a metropoli-

tan daily newspaper, such as the New York Times, has a

circulation of less than one million copies. The number |

of persons who read a particilar news item is probably

_much smaller.

POINT Il ie

License renewal proceedings have not = effec-

tive in obtaining compliance with the Fairness Doc-

trine; the public interest requires a direct and | sum-

mary procedure. ;

_ The Office of Communication of the United Church of

Christ was, we believe, the first public complainant in the

histery of the Communications Act to obtain a hearing on

the overall performance of a station: licensee applying for

a three-year renewal term. The Commission charged it with: ¥

_ the burden of proof and restricted its right to examine the

station’s program logs, program transcripts and other

_ 5 Although newspapers uSe wire services and syndicated pro-

grams, they select freely from a yariety-of sources and rely primarily

upon their local: staffs. One observer measured a sma group of

daily newspapers and concluded that “about 36% of tM¥ir content

was from outside sources, syndicates and wire services.” Wiggins,

-. James Russell, Freedom or Secrecy, New York, Oxford suernd

Press, 1964, p. 222.

5 McNeill, Robert, The People ‘Machine, Harper & Row, New ~~

York, 1968, page 5: Acoording to a CBS survey, about. 59%

of the adult population of the United States watched or heard

about Senator Joseph R. McCarthy’s answer to Edward R. Murrow

‘, and 33% believed McCarthy had proved Murrow was a pro-Com-

munist or had raised doubts about him. Friendly, op. cit., p. 60.

~ inaterial. As predicted by the Court of Appeals,** the task

assumed by the Office of Communication proved very bur-.

densome. Before the proceedings were initiated, a monitor-

- ing study was made employing about thirty persons/ Ap-

proximately three years were spent in various proceedings :

before a hearing was held. The hearing itself took approxi- _ .

mately three weeks, and resulfd in over 1700: pages of tes-

y and many thousands of pages of exhibits. The pro-

posed findings comprise several hundred pages. The hear-

ings on the WXUR license renewal took an even greater

time and were even more burdensome on the public parties.

In both cases, ‘personal attack violations were found, and

in both cases renewal was recommended based on the over-

all record of the station.* Both are under review.

Regardless of the ultimate results it is unreasonable to

expect that the victim of a personal attack wili be willing

or able to conduct proceedings of this type except in the

most extraordinary circumstances. . Even community or- .

ganizations will rarely be able to finance and conduet such

58 “The fears of sail agencies that their processes will be

' inundated by expansion of standing criteria are rarely | borne out.

Always a restraining factor is the expense of participation in the

administrative process, an economic reality which will operate to

limit the number of those who will seek participation; legal and

related expenses of administrative proceedings are such that evert -

those with large economic interests find the costs burdensome, More-

over, the listening public seeking intervention in a license renewal

proceeding cannot attract lawyers to represent their cause by ‘the

prospect of lucrative contingent fees, as can be done, for exaimple,

in rate cases.” “Office of Communication v. F.C.C., 359 F. 2d

at p. 1006.

* Renewal is dependent upon overall performance, not particu-

lar violations. Letter to Cullman. Broadcasting Company, F.C.C.

63-849, September 18, 1963; Letter to’ Honorable Oren Harris,

F.C.C. 63-851, September 20, 1963. Because of the drastic nature

of renewal proceedings, they have not been either adequate or

effective as a means of enforcing compliance with the F.C.C:- regu-

lations. Cf. Head v..New, Mexico Board of Examiners, 374 U.S...

‘At, 434, 2. 1. (1963), gigs ie

mo = ene terenen eee

proceedings. Thus, aly where a licendee, has einai:

persistent and outrageous violations is ‘such action likely

and even then no penalty may result, becatise Oy superior

performance in other types of progratiming, . :

‘ Furthermore, a non-renewal of license many years “fol-

lowing the violations has only a limited value in protecting.

the public interest. The purpose and value of free ex-

pression, after all, is as a guide to intelligent social action ~

_ by an informed citizenry. Unless one’s voice can be heard

when action is still possible, the right to speak is a hollow __

one. The inflammatory editorials on Station WLBT and

the barrage of Communist charges against civil rights ad-

vocates reached their height in the period before’ the Ox-

ford riots on September 30, 1962. Disciplinary action’

which might’ take: place hereafter cannot moderate the

passions or prevent the death and bloodshed which then

occurred.

In 1960 a Subcommittee of the Sennte Committee on Com-

merce was appointed to make a complete study of federal -

policy ¢ on ‘‘uses of Government licensed media for the dis-

semination of political opinions, news,’. . . and the pres-

entation of political candidates’’. One-of its recommends,

tions was that:

“The Federal ‘eae Commission should

reform its internal procedures for the handling and

processing of ‘equal-time’ and editorial ‘fairness’ com.

plaints. The time lag at the Commission must be cut

_to the minimum. Here are issues in which time is most

certainly of the essence.’’ (Emphasis added)™

. rom ae ceo. -

_ The physical handling offsuch complaints—in the

mail room—at the first point received by the Commis-

sion must be so organized and staffed so that the ac-

5° Senate Report No. 994, pt. 6, 87th — 1st ‘Skssion, p. 10.

a a i)

tion to astertaim all ngcessary facts on a given com-

plaint begins wit hours of réceipt of same by the

Gommission.’”™ aes jae ered PAA ee,

Pit tS

or Thus, it is clear that ‘die Fairness Doctrine; as. applied et

’ ‘prior to the promulgation of the Personal. Attack and~Po-

litical Editorial’ Rules, did not protect the public; there —

. Was an imperative need for more effective procedures to

compel licensees hee perform their trusts.

POINT Ill |

The Personal Attack and Political Editoral Rules

are a modest first step toward — programming |

on controversial { issues.

It is by. no means accidental that the Srcedeenting in-

dustry has initiated its first legal challenges to the Fairness

‘Doctrine eighteen years after its adoption. The fact is. that

for all these years the Doctrine has been little more than a.

pious expression of hope, complied with by:some.respon- —

sible> licensees and disregarded by others. The Commis-

sion, with its customary:caution and solicitude for the

| industry, has contented itself with an occasional reiteration

~ of its. views and a few warnings to violators. '

According to Newsweek (July 4, 1966, p. 80): ,

_ “There has so far been no rein whatsoever on the

radio of the right. The FCC’s ‘fairness doctrine’ de-—

‘clares that broadcasters must give equal time for reply

to ‘any subject or individual ‘attacked, but it has’ no

control over the virulence of the attack. Besides, the

;: doctrine i is seldom invoked. ‘FCC enforcement in this ~

- area is terrible,’ says one Senate staffer.’’ See also:

- seg the FCC Dead?’’, The oe July, — page

66 ibid, p. 11..

One thing i is clear: ilk daceibhione ba bi been given every

reasonable chance and has failed.

‘The new Rule will, for the first time, make it moet for

‘one who is attacked and denied an opportunity to reply

to obtain an immediate ruling at reasonable cost, and,

where appropriate, a Commission order. This is only a

modest, advance. It will not provide a satisfactory pro- ~

cedure for correction of other Fairness Doctrine violations,

-such_ as programming on only one side ofsa public issue.

However, the Commission can reasonably deal first with. :

‘personal attacks and political editorials because these are

often the matters where an immediate response is most ~ .

necessary and where the appropriate — to make a

- - ‘Tesponse.is easily. identified:

Petitioners’ make the inconsistent arguments that the 7

Rules are unnecessary to enforce compliance, and that the

enforcement of the Rules would create such practical diffi-

culties as to discourage all controversial issue program-

ming. panen sais !

The latter argument is by no means new: When the

Fairness Doctrine was first announced, in 1949, it was met

with predictions that controversial programming would be

perilous. To the extent that these new predictions may. :°:

represent a threat to discontinue programming ‘on contro-

_.versial issues, the Commission has ample authority: to deal

with it. The same kind of predictions were made at the

time of ‘the last great “freedom of speech for broad-

casters”? - -controvexsy, ie., when.the Chain Broadcasting

Regulations: were adopted. The introduction to a pam-

phlet published by ,CBS at the time is attached as an: —

exhibit to this brief.

Any licensee who has an avid porre to eonply: with

the Fairness Doctrine, including the Personal Attack: and

Political Editorial Rules, should welcome an opportunity

to be advised currently as. to its obligations, instead of

waiting until its license is in jeopardy before learning ~

what it aa do. 7

86 |

+ The inst vagueness of the. Ruie siti no constitu-

- tional difficulty because a licensee has only to apply to the

Comniission for a ruling on a particular question ‘and, in

any event, will -not be subjected .to sanctions, absent. a :

willful ea ree See Screws Y &. 2. 325 Uz. 8. 91, 102.

(1945).

| The Reles: do not impose an undue fnanciel burden. ;

It is usual, in granting a& public franchise: or privilege, to.

‘impose conditions protecting the public interest. - There -

-has been no showing that the financial cost of providing

free time to respond -will constitute an excessive burden. -

effect for eighteen years, station ae have continued

.- to increase in value. —

In 1966 the highest prices in the hiatory of ccnitanntins

were paid for an FM station ($850,000° for WRFM, New

York), and for a UHF television station ($3,900,000 for

. Channel 47, in Fresno, California.” Records were also set

in 1967, when over °$21,000,000 ) was paid for’ a - television

acne

station in Houston, Texas.”

These prices. reflect ‘the stations’ enormous profits in

relation to.investment in tangible broadcast. property. In

1966, the television industry earned about $493 million on

a depreciated cost of about $550, million. 34

The, broadcasting industry *g° income (before Federal in-

come tax) has increased every year since 1959:

From: 1959" to-1960 the increase was 9.6%; from: 1960:

to 1961 it was 8.1% ;. from 1961 to 1962 it was 33.3%; from

4962 to 1963 it was 12.1%; from 1963 to 1964 it was 8 22% |

tT F.C.C. 32nd Anfual Report, pp. 95-96. ?

* 8 F.C. 33rd Annual Report, p. 32. :

\ % Ibid., pp. 173, 176. _

} “ s ‘ . ; : 5

1: a) a es. gris _3T

: a from 1964 to 1965 it 1 was 8.1% ‘and from 1965 to 1966. it

was 12.3%.

| _- There is no: basis for the suggestion that the bation of

.- farnishiag time to reply is comparable to the threat of a .

$500,000 libel‘fudgment for a single attack. See, New York .

Times Co. v. Sullivan, 376 U. S. 254-(1964), or a $10,000,000

claim (see Curtis Publishing Co v v. - Butts, = U. S. mn,

137 (1967). 7

Indeed, it should be ae that the New’ York Times 7

and Curtis Publishing cases represent a difficult accommo-

Eb Ga dation of conflicting social values, the public interest in

|... freé speech on the one hand and the individual interest in

reputation and privacy on the other. - In striking this bal-

‘ance, the availability of a right of access for self-defense.

may well make tolerable a broader freedom of dis¢ussion.

‘Such a right provides a remedy of value to the victim at a

modest cost to the attacker.. It provides a middle ground

_between-injury without remedy: and huge awards bcd un-

intended libels® | oo

. CBS has submitted “below ‘an saints: listing certain

“arguable” personal attacks which appeared in its pro- °

_ gramming. We urge the Court to study any such appendix

‘| with care. We believe that almost all of the quoted criti- .

— - + cisms fall.shert of attacks on honesty, integrity or char- .

g - acter or like personal qualities. We believe that network —

ae Se programs (other than on-the-spot news and news inter-

' views) rarely contain such attacks, that there’ are probably

% less than, teh a year, and that they are made only on or-_

ganizations and individuals who have been the subject of

considerable official scrutiny, e.8-, “the Ku Klux seins J ames = 2a

>. pence 27th p. 62; 28th p 78; 29th p. &;

30th p. 82; 31st p..127; 32nd Pp. iat; 33rd a 170.

_ * & See Note, An Alternative to the General Damage Award for ~

Defamation, 20 Stanford Law. Review 504 (1968). | yee

> > Hoffa and Coiigressyasii'A A yton Powell ‘We ali

. that in almost ‘every case: where such an attack is made

(as¢n news: gv tae rer an opportunity to respond. is:

_ given within the. program which contains the attack. We.

- believe, in short, that the extravagant predictions of ‘gost,

inconvenience ‘and inhibition which the broadcasters make Loe

are founded on nothing but infgenuity. and imagination. We ..

>. find it difficult to elieve that anything could be less robust

‘than: the discussion presently taking place | ‘on network — oa: :

documentaries. : The best evidence of this is the fact that = \

the Senate Study of the Fairness Doctrine indicated that. .

_ there’ wasn’t a single personal Bttack. complaint against a =,

network out of 173 such complaints pepe a test ign .

( See p. 12, supra).

: The Commission has already indicated by. “both words

_» they appear to be in the public interest. The rules have ~

been amended ‘twice since they were adopted. In ‘its opin

- jon accompanying the order the ‘Commission stated :

*. “Tt may be that experience will indicate the need or

bey desirability of: other revisions, -- clarifi 1S, _—OF -

——." waivers of fhe rule in particular factual situations.

If so, we shall act promptly to make whatever changes

. the public interest in the larger and more effective use

of radio requires. ? (32 Fed. Reg, 11532 , par. 4)

* One thing i is clear. Although the ‘Commission has been .

. greatly concerned with the .problem /of fair use of the

. airwaves” for ever two decades, it has at

__in-taking-effective action to force compliance with the Doc-

eine apparently hoping that with. each restatement of its

views, voluntary compliance would be forthcoming.

The broadcasting industry has no reason to fear that the

Commission will disregard its interests i in applying the new

~ Rules. ~

sli cicks hy, MM 2 HS

This. Court should find that the Commission’s Per-

sonal Attack and Political Editorial Rules are reason-

' able and ‘proper, should affirm the judgment of the ~

_ Court of Appeals for the District of Columbia Circuit ‘

‘and should reverse the judgment of the Court of Ap- .

‘peals for the Seventh Circuit.

bie - Respectfully submitted,

a ng tee Epwarp.A. BregnsTern, .

ee , | 660 Madison Avenue, .

New York N. Y, 10021,

Attorneys for Amid Curiae.

wis?

February, 1969.

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\OMED IMES you Ihave to ‘ike a thing

get them to reali

away from People to

ne what it means to lose it.

Phat j is going to be true of radio broadcasting us we know it

in America unless people understand what: is Rappening and do

“something about i its |

‘Most eople will. never sce them or read

The gies cnn Commission has adopted eight

new “regulations.”

them. They are wra

ed up in a thick government report. Like a

bitter pill, they~are Sugar-coated with nice words and - ‘high-- can

» sounding, phrases about the public interest.

that Would make people think the Commission

Fi _ it is actually i Like calling a blitakvie ® rescue party.

‘Tn its report; and in subsequeni utter ances by its Chairman,

the Commission bolsters its atiack on the networks by the loose,

Then, to make the .

a ‘“deceptio ion ‘complete, they are handed out with a press release

is protecting what’

? i unsubstantiated usé of such words as “monopoly, ” “domination,”

and “control.” Since the public is interested not in epithets, but

in the truth about American broadcasting pr actices, we call ‘par-

ticular attention to pages 23 to 32 of this ; analysis which deal with

the realities of these aspects of network brdadensting:

7 Columbia Broadcasting System here states, and i in nibuequent

. Rages demonstrates, that, instead of benefiting the public, instead

of promoting sound competition, instead of i unproving radio broad-

‘Casting, what the Commission Proposes to do will have these elfects :

1, It will threaten the very ‘atichenss of present network

broadcasting service, bring confusion to radio listeners,

to radio stations, and to the users of radio, and deprive .

business of an orderly and stable mcthod of presenting —