Appendix — Columbia Broadcasting System, Inc. v. Democratic National Committee

APPENDIX A:

APPENDIX B:

APPENDIX C:

APPENDIX D:

TABLE OF CONTENTS

Opinion of the United States Court

of Appeals for the District of Co-

lumbia Circuit, August 3, 1971 _.__

Order Entering Judgment of United

States Court of Appeals for the Dis-

trict of Columbia Circuit, August 3,

1971

Order of the United States Court of

Appeals for the District of Columbia

Circuit Denying Petitions for Re-

hearing, October 4, 1971...

Memorandum Opinion and Order of

the Federal] Communications Com-

mission, Adopted August 5, 1970,

and Released August 12, 1970 __._.

Page

C-1

Al

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT oF COLUMBIA CIRCUIT

No. 24,492

BUSINESS EXECUTIVES’ Move FOR

VIETNAM PEACE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATEs oF AMERICA, RESPONDENTS

Post-NEWSWEEK STATIONS, CAPITAL AREA, INC.,

INTERVENOR

No. 24,537 ™

DEMOCRATIC NATIONAL COMMITTEE, PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES oF AMERICA, RESPONDENTS

AMERICAN BROADCASTING COMPANIES, INC. and

COLUMBIA Bro

ADCASTING SYSTEM, INC., INTERVENORS

Petitions for Review of Orders of the

Federal Communications Commission

Decided August 3, 1971

—

A2

Mr. Joseph A. Califano, Jr., with whom Messrs. David

H. Lloyd and Irvin B. Nathan were on the brief, for peti-

tioner in No. 24,537.

Mr. Daniel R. Ohlbaum, Deputy General Counsel, Fed-

eral Communications Commission, for respondents. :

Messrs. John H. Conlin, Associate General Counsel, and

Stuart F. Feldstein, Counsel, Federal Communications

Commission, were on the brief for respondents in No.

24,492. Mr. John H. Conlin and Miss Katrina Renouf,

Counsel, Federal Communications Commission, were on

the brief for respondents in No. 24,537.

Mr. Henry Geller, General Counsel, Federal Communi-

cations Commission, at the time the record was filed, also

entered an appearance for respondent Federal Communi-

cations Commission in No. 24,492.

Mr. Howard E. Shapiro, Attorney, Department of Jus-

tice, entered an appearance for respondent United States

of America.

Mr. Ernest W. Jennes, with whom Messrs. Charles A.

Miller and Henry Goldberg were on the brief, for inter-

venor in No. 24,492.

Mr. J. Roger Wollenberg, with whom Messrs. Timothy

B. Dyk and Daniel Marcus were on the brief, for inter-

venor Columbia Broadcasting System, Inc. in No. 24,537.

Messrs. James A. McKenna, Jr. and Vernon L. Wilkin-

son were on the brief for intervenor American Broadcast-

ing Companies, Inc. in No. 24,537.

Before WRIGHT, MCGOWAN and ROBINSON, Circuit

Judges.

Opinion filed by WRIGHT, Circuit Judge.

Dissenting opinion filed by McGowan, Circuit Judge.

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WRIGHT, Circuit Judge: In these cases we are asked to

decide whether a broadcast licensee may, as a general pol-

icy, refuse to sell any of its advertising time to groups

or individuals wishing to speak out on controversial public

issues. The Federal Communications Commission con-

cluded that such a policy is permissible.’ We reverse the

Commission’s decision. And we remand for further pro-

ceedings.

The principle at stake here is one of fundamental im-

portance: it concerns the people’s right to engage in and

to hear vigorous public debate on the broadcast media.

More specifically, it concerns the application of that right

to the substantial portion of the broadcast day which is

sold for advertising. For too long advertising has been

considered a virtual free fire zone, largely ungoverned by

regulatory guidelines. As a result, a cloying blandness and

commercialism—sometimes said to be characteristic of

radio and television as a whole—have found an especially

effective outlet. We are convinced that the time has come

for the Commission to cease abdicating responsibility over

the uses of advertising time. Indeed, we are convinced

that broadcast advertising has great potential for enliven-

ing and enriching debate on public issues, rather than

drugging it with an overdose of non-ideas and non-issues

as is now the case. :

Under attack here is an allegedly common practice in

the broadcast industry—airing only those paid presenta-

the permissibility of this practice “goes to the heart of the

system of broadcasting which has developed in this coun-

1 Business Executives Move for Vietnam Peace, 25 F.C.C.2d

ro (1970); Democratic National Committee, 25 F.C.C.2d 216

1970).

A4

try.” ? We disagree. The actual issue before us is relative-

ly narrow and we decide it narrowly. We do not have to

cut to the “heart” of our system of broadcasting; we leave

undisturbed the licensee’s basic right to exercise judgment

and control in public issue programming and the sale of

advertising time. All we do is forbid an extreme form of

control which totally excludes controversial public debate

from broadcast advertising time.

We hold specifically that a flat ban on paid public issue

announcements is in violation of the First Amendment, at

least when other sorts of paid announcements are accepted.

We do not hold, however, that the planned announcements

of the petitioners—or, for that matter, of any other par-

ticular applicant for air time—must necessarily be ac-

cepted by broadcast licensees. Rather, we confine ourselves

to invalidating the flat ban alone, leaving it up to the li-

censees and the Commission to develop and administer

reasonable procedures and regulations determining which

and how many “editorial advertisements” will be put on

the air.

I

Both petitioners in these cases are organizations whose

primary modus operandi is public persuasion and com-

munication. As a rule, they do not attract attention to

their views by performing newsworthy acts, such as en-

gaging in civil disobedience or organizing mass demon-

strations. They depend, instead, on their ability to get a

hearing—as full as possible and as direct as possible—

from the general public. Surely radio and television would

seem to be the most effective media for their purposes. Yet

they contend that their self-expression on those media—

and, therefore, the public’s access to their views—is signi-

ficantly inhibited by broadcaster policies barring any and

all paid editorial messages from the airwaves.

2 Democratic National Committee, supra Note 1, 25 F.C.C.2d at

221. "

Ad

The Business Executives Move for Vietnam Peace

(BEM) is a national organization of over 2,700 business

owners and executives, organized in Opposition to the war.

BEM apparently believes that it is in a position to offer

the public a unique viewpoint on what is no doubt one of

the great political and moral issues of our time. In order

to communicate that viewpoint, it prepared several record-

ed one-minute radio announcements. The announcements

urged “immediate withdrawal of American forces from

Vietnam and from other overseas military installations”

and featured statements by leading businessmen and re-

tired military officers whose views may carry particular

weight with the general public. BEM sought to buy time

to air these announcements on the broadcast media, just as

commercial advertisers do. It must have seemed an extra-

ordinarily effective means of directly communicating its

ideas and sense of urgency to the broad listening audience.

In June 1969 BEM sought to purchase time for its an-

nouncements on WTOP, an all-news radio station in the

nation’s capital. Like most broadcasters, WTOP sells sub-

stantial amounts of time for short advertisements. Yet

over a period of eight months it repeatedly refused to sell

any time to the business executives. WTOP cited no par-

ticular objection to the planned announcements. Rather,

it relied solely upon an across-the-board policy barring all

editorial advertisements—“its long established policy of

refusing to sell spot announcement time to individuals

or groups to set forth views on controversial issues,” 3

BEM then filed a complaint with the Federal] Communi-

’ WTOP also stated “that ‘subjects of this type require a more

in-depth analysis than can be provided in a 10, 20, 30 or 60 second

announcement.’” Business Executives Move for Vietnam Peace,

of its antiwar views. For a discussion of the Permissibility of a

flat ban on “short” public issue advertisements, see text at page

[A-26] infra.

ae

Aé6

cations Commission alleging violations of both the fairness

doctrine and the First Amendment.

The Democratic National Committee (DNC) came to the

Commission with much the same sort of complaint. It

stated that it was in the process of planning an extensive

media campaign to communicate the Democratic Party’s

views on crucial issues and to solicit funds. In our politi-

cal system, it is of obvious importance that the public have

aecess—as direct and full as possible—to the views of the

political parties. A party currently out of office may well

regard such communication as particularly vital. Yet DNC

alleged that it confronted several obstacles to direct self-

expression on the broadcast media, among them the re-

fusal of some broadcasters to sell time for comment on

controversial public issues. Unlike the business executives,

DNC did not complain of any individual refusal to sell

time for a particular editorial advertisement. Rather, it

cast the issue in a somewhat different light by seeking a

declaratory ruling from the Commission that “[a] broad-

caster may not, as a general policy, refuse to sell time to

. responsible entities, such as DNC, for the solicitation of

funds and for comment on public issues.”

The Commission considered the two cases together and

rejected the arguments of both BEM and DNC on the

same day. The issues involved did not overlap completely.

For example, the Commission found a defect in the vague-

ness and generality of BEM’s fairness doctrine com-

plaint,* and it resolved DNC’s contention concerning fund

*In its original complaint, BEM alleged generally that WTOP

had failed to cover antiwar views fully and fairly. However, it

offered no specific proof whatever of its allegations, and WTOP,

on the other hand, offered a lengthy compilation of news and

interview shows which aired the opinions of some antiwar groups

and individuals. BEM has not pressed its fairness doctrine argu-

ment on appeal, but rather has relied solely upon the First Amend-

ment right-of-access contention. which it also made before the

Commission. Therefore, we need not consider here the Commis-

sion’s holding that BEM failed to shoulder its full burden of going

forward under the fairness doctrine.

“

A7

solicitation by noting that all three television networks

had agreed to accept such solicitations and by Stating that

any broadcaster policy of confining Solicitations to elec-

“reasonableness” Standard of the fairness doctrine, ac-

ceptance of that particular format is by no means com- —

pulsory.

would “be prepared, consistent with its other obligations, to accept

such orders for time from major politica] Parties as can be ac-

commodated on a reasonable basis.” And NEC stated it “has no

Policy which would prevent the Purchase of program time en-

visioned by DNC.” We are constrained to note here that any dis-

saaaTicainimmiinal a

A8

Second, the Commission interpreted the First Amend-

ment to be equally permissive. Its reasoning on this point

was rather sparse. It made no effort, for example, to

identify the peculiar First Amendment interests attaching

to paid editorial announcements as opposed to coverage

of controversial issues on news, interview or discussion

programs. Instead, it was content to raise the spectre of

the “chaos” and other practical difficulties that, it said,

would attend a right of access to the broadcast media.

The Commission concluded that the fairness doctrine’s re-

quirement of full and fair coverage—tolerant as it is of

a flat ban on the editorial advertisement format of ex-

pression—provides as much protection of public debate

as the First Amendment demands.

Before this court, both petitioners make substantially

the same attack on the Commission’s decision. They do

not ask for a ruling that all editorial advertisements

submitted to broadcasters must be accepted. Nor do they

seek to foreclose entirely the broadcasters’ exercise of

reasonable discretion. What they advocate is a limited

right of access to radio and television for paid public is-

sue announcements. They attack the Commission’s ruling

that a total exclusion of such announcements is permis-

sible.

|

Petitioners have left r ne unturned in their attack

on the exclusion of editorial advertising. They have in-

voked the Communications Act’s “public interest” re- ~

quirement * and the statutory-regulatory fairness require- ~

ment *—as well as First Amendment principles—to sup-

port their argument. In other contexts, we might attempt

*47 U.S.C. §§ 307(d), 309(a) (1964).

747 U.S.C. §315(a) (1964). For a discussion of the regulatory

development of the fairness doctrine and its eventual adoption in

the Communications Act, see Red Lion Broadcasting Co. v. F.C.C.,

395 U.S. 367, 375-381 (1969).

A9

to avoid the constitutional issue by coming to a decision

on nonconstitutional grounds. But that course is neither

fruitful nor possible here.

Speaking specifically of the Commission, the Supreme

Court has stressed the “venerable principle that the con-

struction of a statute by those charged with its execution

should be followed unless there are compelling indications

that it is wrong.” Red Lion Broadcasting Co. v. F.C.C.,

395 U.S. 367, 881 (1969). Thus the nonconstitutional

question here is whether there are “compelling indica-

tions” that the public interest and fairness requirements

compel some opening for public issue advertisements on

radio and television. In matters of allocating burdens, re-

forming procedures and ensuring full attention to all

relevant factors in agency decision making, we have not

been reluctant to reverse the Commission in order to vin-

dicate “the public interest.” * We have also intervened to

see that broad policies developed by the Commission un-

der the fairness doctrine are applied fully and consist-

ently to all cases.’ However, when we are asked to re-

verse major substantive interpretations of the grand and

open-ended statutory requirements, we tread somewhat

more difficult terrain. Obviously, the requirements mean

something and there must be a great range of actions

which they foreclose to the Commission; but, in establish-

ing the necessary guidelines, we must ourselves seek ex-

trinsic guidance.

In these cases, that guidance comes from the Constitu-

tion. Petitioners have presented no “compelling” evidence

from legislative history to indicate a congressional policy

in favor of, or even a real congressional attention to,

editorial advertising. Rather, their arguments on the non-

8 See, e.g., Office of Communication of United Church of Christ

Vv. F.C.C., 128 U.S.App.D.C. 328, 359 F.2d 994 (1966); 138 U.S.

App.D.C. 112, 425 F.2d 548 (1969).

* See, e.g., Retail Store Employees Union, Local 880 v. F.C.C.,

—— U.S.App.D.C. ——, 436 F.2d 248 (1970).

sorts : a

A 10

constitutional points closely parallel their constitutional

arguments. The general policy considerations which they

invoke encompass all of the interests that would have to

be evaluated under the relevant First Amendment law.

It would make no sense for us to blind ourselves to the

constitutional status of those interests and to the doctrine

that has been build up around them.

What then might be the “compellfng indications” we

are to consider? The ones which seem to us truly “com-

pelling” involve First Amendment principles. Thus we

conclude that the constitutional question must be faced

and is, indeed, the essence of these cases. Whether our

decision is styled as a “First Amendment decision” or as

a decision interpreting the fairness and public interest

requirements “in light of the First Amendment” matters

little.

ITI

It has always been clear that the broadcast media—so

vital to communication in our society—are affected by

strong First Amendment interests.” Yet the nature of

those interests has not been so clear; an evolution of con-

stitutional principles in this area is still very much in

progress. Until quite recently, the only interest raised

to constitutional status was that of the broadcast licensees

themselves. In a leading case, the Commission’s powers

over program content were attacked and upheld with

reference solely to the licensees’ right of immunity from

governmental interference with their “speech.”’ The scarc-

ity of broadcast frequencies was said to justify some reg-

ulation trenching on the broadcasters’ First Amendment

interests. National Broadcasting Co. v. United States, 319

U.S. 190 (1948). These cases mark a new effort by mem-

10 See, e.g., United States v. Paramount Pictures, Inc., 334 U.S.

131, 166 (1948). Congress itself has prohibited any interference

by the Commission with “the right of free speech by means of

radio communication.” 47 U.S.C. § 326 (1964).

All

bers of the public to assert their First Amendment in-

terests in the operations of radio and television.

“[First] Amendment limits only the action of Congress

or of agencies of the federal government and not private

We believe the path is now clear of such doctrinal im-

pedimenta. Perhaps the most important recent develop-

concern and activism regarding the broadcast media, the

Court stated that “the people as a

* * * collective right to have the m

ment.” It went on to Say:

™ 395 U.S. at 390.

_ ee

Ai2

“* * * The right of free speech of a broadcaster

* * * does not embrace a right to snuff out the free

speech of others. * * *

* + & ®

“* * * [A] licensee has no consitutional right

* * * to monopolize a radio frequency to the exclu-

sion of his fellow citizens. * * *

* * * *

“* * * It is the right of the viewers and listeners,

not the right of the broadcasters, which is paramount.

* @ #99 12

Of course, the Red Lion Court had to invoke the pub-

liec’s First Amendment interests for a narrow purpose

only—to uphold legislative and administrative action al-

ready taken. It did not have to reach the issue, presented

in these cases, of invoking those interests for a direct

attack on broadcasters’ policies approved by the Commis-

sion. However, the language used by the Court is signifi-

cantly expansive. It spoke of a First Amendment “right”

held by “the people as a whole.” A constitutional “right”

is hardly deserving of the name if it can function only

to permit legislative and administrative action and if its

content depends entirely upon the current policies of the

legislative and executive branches. The First Amend-

ment, after all, contains nothing analogous to the fifth

section of the Fourteenth Amendment, authorizing Con-

gress to enforce constitutional interests unenforceable by

the courts.”

For many purposes, it is proper to consider broadcast

licensees as “private” businesses. Yet, for purposes of

12 Id, at 387, 389, 390.

18 On the effect of the specific language in the fifth section of the

Fourteenth Amendment, see Oregon v. Mitchell, 400 U.S. 112

(1970) ; Katzenbach v. Morgan, 884 U.S. 641 (1966). Of course,

the Fourteenth Amendment does not apply to federal regulation

of the broadcast industry, since no interference with the states is

involved.

A 13

the First Amendment, “ [o]wnership does not always

mean absolute dominion.” Marsh v. Alabama, 326 U.S.

501, 506 (1946). “Conduct that is formally ‘private’ may

become so entwined with governmental policies or so im-

pregnated with a governmental character as to become

subject to the constitutional limitations placed upon state

action.” Evans v. Newton, 382 U.S. 296, 299 (1966).

The Red Lion Court itself commented on the impermissi-

bility of “private censorship” and cited old doctrine that

““{f]reedom of the press from governmental interference

under the First Amendment does not sanction repression

of that freedom by private interests.’” * The reach of

the First Amendment, therefore, depends not upon “pub-

lic’ —“private” technicalities, but upon more functional

considerations. They are (1) the governmental involve-

ment in or public character of a particular enterprise,

and (2) the importance or suitability of that enterprise

for the communication of ideas.®

The last few decades of court decisidtis expanding the

concept of “state action” have focused on myriad indicia

of governmental involvement and public character. Many

4 395 U.S. at 392, quoting Associated Press v. United States, 326

U.S. 1, 20. (1945).

** Most “state action” cases, of course, have been concerned with

equal protection rights under the Fourteenth Amendment rather

than with free speech rights under the First Amendment. How-

ever, the principle of governmental involvement developed therein

has been applied equally well in the First Amendment context.

See, e.g., Public Utilities Comm’n v. Pollak, 343 U.S. 451 (1952) ;

Farmer Vv. Moses, S.D. N.Y., 232 F.Supp. 154 (1964). The principle

of “public, character” may be found in decisions dealing directly

with application of First Amendment rights to “private” entities.

See., e.g., Marsh vy. Alabama, 326 U.S. 501 (1946) ; Amalgamated

Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391

U.S. 308 (1968); Tanner v. Lloyd Corp., D. Ore., 308 F.Supp. 128

(1970) ; Diamond v. Bland, 91 Cal. Rptr 501, 477 P.2d 738 (1970).

The importance and suitability of a particular place for the com-

munication of ideas has been. stressed in all of the cases cited

above, as well as in all of the access-to-public forum cases, see

Notes 40-43 infra.

a 11 CRE OI

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of them are apparently applicable to the operations of the

broadcast industry.* But we need stress only two more

basic factors which, taken together, bring broadcast li-

censees well within the ambit of the First Amendment

for the purposes of these cases. First, the general char-

acteristics of the broadcast industry reveal an extraord-

inary relationship between the broadcasters and the fed-

eral government—a relationship which puts that industry -

in a class with few others.’ It is one of “interdepend-

ence” and “joint participa[tion].” See Burton v. Wil-

mington Parking Authority, 365 U.S. 715, 725 (1961).

“(T]he [federal] regulatory system,” it has been said,

“is as much responsible for the existence of a broadcast-

ing medium as the Bureau of Engraving is responsible

for the existence pf United States currency.” ™ It has

1¢ Dissenting in the BEM case now under review, Commissioner

Johnson dealt exhaustively with the Supreme Court’s state action

doctrine, isolating eight separate indicia of “state action.” He

argued very strongly that all eight indicia apply to broadcast

licensees. Business Executives Move for Vietnam Peace, supra

Note 1, 25 F.C.C.2d at 258-264. Because this highly analytical—one

might say mechanical—approach runs the risk of reading Supreme

Court opinions for more than they mean, we have chosen to paint

with a broader brush. Ours is the approach which the Supreme

Court seems in fact to have used in the past.

17In particular, broadcasting may be easily distinguished from

the newspaper industry in terms of “state action.” In two recent

decisions, courts have held that newspapers are not subject to the

First Amendment. Associates & Aldrich Co., Inc. v. Times Mirror

Co., 9 Cir., 440 F.2d 188 (1971); Chicago Joint Board v. Chicago

Tribune Co., 7 Cir., F.2d , 89 U.S. L. WEEK 2360 (Decem-

ber 17, 1970). While the governmental involvement in and public

character of newspapers in surely less than that of broadcasting,

we of course need express neither agreement nor disagreement with

the cited decisions here.

18 Pemberton, The Right of Access to Mass Media, in N. DORSEN

(ed.), THE RIGHTS OF AMERICANS 277, 290 (1971). The Govern-

ment is also directly responsible for the very existence of particular

broadcasters. “[E)xisting broadcasters have often attained their

present position because of their initial government selection in

competiton with others * * *. * * * [Their present] advantages

are the fruit of a preferred position conferred by the Government.”

Red Lion Broadcasting Co. Vv. F.C.C., supra Note 7, 395 U.S. at 400.

\

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long been recognized that the airwaves are “a limited

and valuable part of the Public domain,” * leased out

temporarily by the federal government which retains ulti-

mate control over them.” Federal agency review and

guidance of broadcasters’ conduct is automatic, continu-

ing and pervasive.” For broadcast licensees are consid-

ered the “proxies” or “fiduciaries” of the people.” Al-

most no other private business—almost no other regulated

private business—is so intimately bound to government

and to service to the commonweal.

A second and even more important factor is the specific

governmental involvement in the broadcasters’ action now

under review here. All of the cases in which previous

courts have characterized broadcasters as mere “private

corporations” immune from First Amendment constraints,

see text at page [A-11] su » have involved direct suits

against broadcast licensees. In the cases before us now,

1° Office of Communication of United Church of Christ v. FCC.

supra Note 8, 123 U.S.App.D.C. at 337, 359 F.2d at 1008.

licensing or delegation relationship is not, of course, enough by

itself to establish state action; licensed Pharmacists cannot be

mental involvement and the public character of the enterprise in

question remain the final tests of state action.

*1 The activities of a governmental regulatory agency have also

been emphasized in at least one of the Supreme Court’s expansive

state action decisions. See Public Utilities Comm’n V. Pollak, supra

Note 15, 343 U.S. at 462, citing American Communications Ass’n

V. Douds, 339 U.S. 382, 401 (1950) (“[WJhen authority derives in

part from Government’s thumb on the scales, the exercise of that

power by private persons becomes closely akin, in some respects, to

its exercise by Government itself.’”’).

22 See Red Lion Broadcasting Co. vy. F.C.C., supra Note 7, 395

U.S. at 394, 396; Office of Communication of United Church of

Christ v. F.C.C., supra Note 8, 123 U.S.App.D.C. at 337, 359 F.2d

at 1008.

—

A 16

however, the Commission has given its imprimatur to the

flat ban on editorial advertising. It specifically consid-

ered and specifically authorized the flat ban. Thus we are

called upon to review not simply a private decision, but

a decision by a government agency, a decision which

must inevitably provide guidance for future broadcaster

action.

There is ample authority for the principle that specific

governmental approval of or acquiescence in challenged

action by a private organization indicates “state action.” *

Indeed, in a case similar to ours the Supreme Court held

that a private bus company franchised by the federal gov-

ernment and regulated by the District of Columbia Pub-

lie Utilities Commission could be subject to First Amend-

ment constraints. It emphasized the specific regulatory

acquiescence in the challenged action of the bus company:

«* * * In finding [state action] we do not rely on

the mere fact that Capital Transit operates a public

utility on the streets of the District of Columbia

under authority of Congress. Nor do we rely upon

the fact that, by reason of such federal authoriza-

tion, Capital Transit now enjoys a substantial mo-

nopoly of street railway and bus transportation in

the District of Columbia. We do, however, recognize

that Capital Transit operates its service under the

regulatory supervision of the Public Utilities Com-

28 The Supreme Court has said that “action of state courts and

judicial officers in their official capacities is to be regarded as

action of the State * * *.” Shelley v. Kraemer, 334 U.S. 1, 14 (1948).

See New York Times Co. Vv. Sullivan, 376 U.S. 254 (1964); Van

Alstyne, Mr. Justice Black, Constitutional Review, and the Talis-

man of State Action, 1965 DUKE L. J. 219, 227-280. See also this

court’s discussion of the Shelley principle—which surely must apply

to actions of a federal administrative agency specifically approving

private action—in Edwards v. Habib, 1380 U.S.App.D.C. 126, 397

F.2d 687 (1968). Specific governmental acquiescence, as well as

specific approval, has also been a focus of Supreme Court state

action decisions. See Marsh v. Alabama, supra Note 15, 826 US.

at 507 & n.4, 509; Burton v. Wilmington Parking Authority, supra

Note 20, 865 U.S. at 725.

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Public Utilities Commission v. Pollak, 343 U.S. 451, 462

(1952). (Footnote omitted. )

Broadcasting’s importance and suitability for commu-

nication of ideas need not be labored. Mere presence of

large and appropriate audiences (and thus opportunities

for effective communication) has sometimes been empha-

sized by the courts to show the relevance of First Amend-

ment protections.“ In Amalgamated Food Employees

Union Local 590 v. Logan Valley Plaza, Ine., 391 U.S.

308 (1968), for example, the Supreme Court held that a

** See, e.g., Wolin v. Port of New York Authority, 2 Cir., 392

F.2d 83, 90-91 ( 1968) (“The Propriety of a place for use as a public

forum-* * * [may be established if] the place is where the relevant

A 18

leafleter are becoming almost obsolescent; their Saturday

afternoon audiences have increasingly moved indoors—in

front of their television sets.*

Moreover, unlike most of the private entities held to

be subject to First Amendment constraints, the broadcast

media are specifically dedicated to communication. They

function as both our foremost forum for public speech

and our most important educator of an informed people.

In a populous democracy, the only means of truly mass

communication must play an absolutely crucial role in

the processes of self-government and free expression, so

central to the First Amendment. That can be said of

almost no other “private” enterprise.

IV

Broadcast licensees, then, serve not only as “speakers”

but also as administrators of a highly valuable communi-

cations resource, subject to First Amendment constraints.

Their dual role demands that their own constitutional in-

terests in free speech coexist with those of the general

public. But what are the dimensions of the public’s First

Amendment interests in the operation of radio and tele-

vision? And how do they apply to the issue of editorial

advertising?

It is particularly important that these cases deal only

with the public’s. First Amendment interests in broad-

casters’. allocation of advertising time. They deal only

with time relinquished by broadcasters to others; peti-

tioners argue only that, in relinquishing that time, broad-

casters must not discriminate against protected expres-

sion. In normal programming time, closely controlled and

edited by broadcasters, the constellation of constitutional

interests would be substantially different. In news and

25 The Supreme Court has noted that broadcast “technology * * *

supplants atomized, relatively informal communication with mass

media as a prime source of national cohesion and news * * *.”

Red Lion Broadcasting Co. Vv. F.C.C., supra Note 7, 395 U.S. at

386 n.15.

A19

documentary presentations, for example, the broadcasters’

own interests in free speech are very, very strong.” The

Commission’s fairness doctrine properly leaves licensees

broad leeway for professional judgment in that area. But

in the allocation of advertising time, the broadcasters

have no such strong First Amendment interests. Their

speech is not at issue; rather, all that is at issue is their

decision as to which other parties will be given an oppor-

tunity to speak.

Though the broadcasters themselves have no substan-

tial First Amendment interest in the allocation of adver-

tising time, we might expect that the interest of mem-

bers of the public—potential advertisers—would be quite

strong. However, the Commission and the broadcaster-

intervenors have argued just the opposite. They contend

that the public’s constitutional concerns do not extend to

advertising time. Thus we must decide whether the sub-

stantial block of the broadcast day devoted to advertising

is but a vacuum, devoid of First Amendment constraints,

in the midst of a medium powerfully affected by those

constraints—a desert in the midst of an oasis. ,

The Commission and intervenors work from the follow-

ing premise. They define the public’s overall constitu-

tional interests in the operations of radio and television

quite narrowly. The public’s only interest, they suggest,

is as viewers and listeners—not as speakers. They cite

to us the Red Lion Court’s mention of “the right of the

public to receive suitable access to social, political, esthetic,

moral and other ideas and experiences” over the broad-

cast media.” And they read that statement to set forth

not only an interest of the public, but the only interest

of the public.

Working from that premise, the Commission and inter-

venors contend that the public already receives “suitable

26 See id. at 396.

27 Id. at 390.

A 20

access” to controversial views on normal programming

time. Application of the fairness doctrine’s requirement

of full and fair coverage of public issues in non-adver-

tising time, they suggest, ensures that all views on these

issues will in fact be presented. They assume that edi-

torial advertising adds nothing new to the debate. The

fairness guarantee alone, they say, is enough to elimi-

nate petitioners’ claim on advertising time—and enough

to satisfy the First Amendment. We disagree.

Surely the public’s interest in free access to the full

spectrum of ideas and controversial views on radio and

television is highly important. The right to receive ideas

and information is deeply rooted in First Amendment

law.* The Red Lion Court stressed that right, since it

was the one primarily relevant to the fairness doctrine

rules at issue in the case. But we do not believe that the

Red Lion decision makes the goal of an informed public

the exclusive First Amendment interest constraining

broadcasters. Certainly the Supreme Court has done so

in no other context.

The public has a First Amendment interest in the

mode or manner—as well as the content—of public debate

aired on the broadcast media. The Red Lion Court itself

stated specifically that “[i]t is the purpose of the First

Amendment to preserve an uninhibited marketplace of

ideas [in the broadcast media].” * This court, similarly,

has said that the Commission is obliged to administer the

airwaves “in such a manner that * * * debate on public

issues is ‘uninhibited, robust and wide-open.’” National

Ass’n of Theatre Owners v. F.C.C., 186 U.S.App.D.C.

28 See Stanley v. Georgia, 394 U.S. 557, 564 (1969); Lamont v.

Postmaster General, 381 U.S. 301, 307-308 (1965) (Mr. Justice

Brennan, concurring); Martin v. City of Struthers, 319 U.S. 141,

143 (1948). The “right to receive,” however, has not been con-

sidered the central First Amendment interest, and never the only

First Amendment interest.

29 395 U.S. at 390. (Emphasis added.)

ees,

—

A 21

352, 365, 420° F.2d 194, 207 (1969). The reference to

“uninhibited” debate is, of course, borrowed from the

Supreme Court’s decision in New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964). The Court there

extended First Amendment protection to some forms of

libel on public officials. It made clear that the Amend-

ment’s concern extends beyond the mere fostering of

speech whose content will properly inform the public.

The New York Times decision establishes a strong First

Amendment interest in vigorous, “wide-open” public de-

bate.

Furthermore, we must take note of a third—but, per-

haps, most important—First Amendment interest. That

is the interest of individuals and groups in effective self-

expression. The Red Lion Court did say that “it is idle to

posit an unbridgeable First Amendment right to broadcast

comparable to the right of every individual to speak, write,

or publish.” *” For, as it pointed out, broadcast time is

necessarily limited. But the limited nature of broadcast

time does not dictate that the individual and group inter-

est in self-expression be brushed aside entirely; it allows

for a reasonably regulated, “abridgeable” right to speak.

The First Amendment values of individual self-fulfillment

through expression and individual participation in public

debate have long been recognized.*! We all have an inter-

est in speaking up ourselves as well as in hearing others.

It is too late to argue that the First Amendment protects

ideas but not an individual’s interest in expressing them

and doing so in his own way.

We conclude, then, that the public’s First Amendment

interests constrain broadcasters not only to provide the

full spectrum of viewpoints, but also to present them in

an uninhibited, wide-open fashion and to provide opportu-

8° Td. at 388.

31 See, e.g., T. EMERSON, TOWARD A GENERAL THEORY OF THE

First AMENDMENT 4-7 (Vintage ed. 1967).

__ Sens Se

a

A 22

nity for individual self-expression.** How do these three

First Amendment interests relate to a more specific inter-

est in the airing of editorial advertisements? The answer

emerges when we understand the special importance of

advertising time to our system of free expression. First,

the initial decision to produce an editorial advertisement is

in the hands of members of the public. The initiative

to present a particular view does not have to come from a

member of the broadcaster’s staff. Second, a paid ad-

vertisement is basically controlled and edited by the ad-

vertiser. He is allowed to present his views in a fashion

chosen by himself. If an individual is interviewed for a

news program, he may expect his comments to be ab-

breviated and edited; reporters’ commentary will qualify

what he has to say. For it is the broadcasters’ responsi-

bility to be objective, to condense issues into available

time for presentation, and to play up or play down views

‘according to the broadcaster’s opinion of what is impor-

tant and interesting. But when an individual or group

buys time to say its piece, the crucial controls are in its

own hands. Editorial advertising is thus a special and

separate mode of expression, not simply a duplication of

other expression on the same medium.*

The importance of initiative and control to the First

Amendment interests in wide-open debate and individual

self-expression should be obvious. Vigorous, free expres-

sion is promoted when members of the public have some

32 Of course, all three of these interests apply to non-advertising

time as well as to advertising time. The Commission, in fact,

has encouraged broadcasters to present conflicting views through

partisan voices as well as through predigested commentary. See

Democratic National Committee, supra Note 1, 25 F.C.C.2d at 222-

223. However, as we make clear in text, the selective, edited

presentation by the Government’s licensee of partisan voices on

news shows, for example, does not erase the special advantages of

allowing self-selected partisan voices on advertising time.

33 See text at pages [A-25 - A-26] & Note 37 infra. See also Note,

A Fair Break for Controversial Speakers: Limitations of the Fair-

ness Doctrine and the Need for Individual Access, 39 GEO. WASH. L.

REV. 532, 557-560 (1971).

A 23

opportunity to take the initiative and editorial control into

their own hands on the broadcast media. It has tradition-

ally been thought that the best judge of the importance of

a particular viewpoint or issue is the individual or group

holding the viewpoint and wishing to communicate it to

others. In the First Amendment area, our best guarantee

has always been a “free market” in which partisans who

feel strongly on particular issues may decide on their own

to speak out and to speak out in their own way. The pres-

ent system, allowing a flat ban on editorial advertising,

conforms instead to a paternalistic structure in which ]i-

censees and bureaucrats decide what issues are “impor-

tant,” how “fully” to cover them, and the format, time

and style of the coverage.

Even if broadcasters were to succeed in presenting a

full spectrum of viewpoints and partisan spokesmen on

non-advertising time, their retention of total initiative and

editoral control is inimical to the First Amendment. The

importance of fair, objective and full treatment of con-

troversial issues on normal programming cannot be doubt-

ed. But, as the Supreme Court has said in the context of

classroom debate, “supervised and ordained discussion’’ js

not enough. Tinker y. Des Moines School District, 393

U.S. 503 (1969). “The Nation’s future depends upon

leaders trained through wide exposure to that robust ex-

change of ideas which discovers truth ‘out of a multitude

of tongues, [rather] than through any kind of authorita-

tive selection,’ ” Keyishian v. Board of Regents, 385 U.S.

589, 603 (1967). In other words, there is always a strong

First Amendment interest in opening up channels for

more spontaneous, self-initiated, self-controlled expres-

sion.* ‘

** We are cognizant of current proposals to reform the Commis-

luster in the past. We commend the Commission’s consideration

of new rules to “encourage and implement” presentation of oppos-

ing viewpoints by reemphasizing the obligation to “seek out”

A 24

Even in terms of the public’s First Amendment inter-

est emphasized by the Commission and intervenors—the

interest of “viewers and listeners” in passive access to the

full spectrum of viewpoints on radio and television—

editorial advertising plays an important role. The con-

cept of “full” coverage of “controversial” issues “of pub-

lic importance” is vague to say the least, and leaves much

controversial issues. Obligations of Broadcast Licensee Under the

Fairness Doctrine, 35 FED. REG. 7820 (1970). But, as the Commis-

sion says, the proposed rules would be but a “modest * * * step in

promoting access to the media.” Jd. at 7821. They go little beyond

the present obligation to give “full” coverage to controversial issues.

Such an obligation is inherently difficult to define and enforce. At

best, the Commission can evaluate only the general willingness of a

licensee to “seek out” issues and glaring examples of noncoverage

of obviously important issues. The Commission cannot be expected

to engage licensees in fine debates over coverage of less obviously

life-or-death issues. But the fundamental point—the point we

emphasize—is that no matter how “fully” controversial issues might

be covered in a perfect broadcasting world, the basic initiative and

control remains with the licensee. Because there is not even a

partial “free market” opening to the public at large, the crucial]

First Amendment interests in decentralized initiative and control

go unsatisfied.

We realize that there is another possible, but purely speculative,

reformation of the fairness doctrine now under consideration which

might be supposed to obviate the need for a measure of “free

market” access to advertising time. It has been proposed that

licensees be required to provide self-edited advertising time to

groups or individuals under the fairness doctrine only when a com-

mercial advertiser has already taken a controversial position in his -

broadcast messages. Such an approach has been taken regarding

cigarette advertisements, though that case was said to be extra-

ordinary and not to establish a general precedent. Banzhaf v. F.C.C.,

182 U.S.App.D.C. 14, 405 F.2d 1082 (1968). But even if that

principle were made to apply generally, it would leave the initiative

solely in the hands of commercial advertisers: the only issues on

which noncommercial groups and individuals could speak through

editorial advertisements would be those issues which commercial

advertisers had already chosen to raise themselves. Allowing such

a narrow group, motivated largely by business profit, to set the

agenda for editorial advertising is unconscionable and contrary to

First Amendment precepts. It is crucial that noncommercial groups

and individuals have the same rights of initiative as commercial

advertisers.

A 265

to the broadcasters’ discretion (and possible oversight) .*

Assuming that broadcasters are sometimes fallible, the

goal of a fully informed public is best attained by open-

ing of outlets for members of the public to supplement

the licensees’ assessments of “importance,” “controversi-

ality” and “full” coverage. The Commission’s and inter-

venors’ argument might be somewhat stronger if it were

designed to support a partial ban on editorial advertising

concerning issues and views which have in fact been sub-

stantially aired on normal programming time.** The ar-

gument is unconvincing, however, in support of a flat,

per se ban on any and all editorial advertisements.

Moreover, even if “antiwar views,” for example, have

in fact been presented on news and interview shows, it’

is not necessarily clear that a particular antiwar editorial

advertisement would add nothing to the public’s infor-

mation and understanding. “Viewpoints” cannot be so

neatly and infallibly catalogued as the Commission would

have us believe. Self-expression and public debate are

much more subtle phenomena; matters of style and in-

tensity of feeling are important components.” Again,

** The guarantees of full and fair coverage have proved particu-

larly difficult to define and enforce in the past. They have taken

on effective meaning only in the most extreme cases of broadcaster

irresponsibility. For a depressing critique of the Commission’s

apparent inability to enforce its own standards, see Cox & Johnson,

Broadcasting in America and the FCC’s License Renewal Process:

An Oklahoma Case Study, 14 F.C.C.2d 1 (1968).

** Even then, however, the special attributes of editorial adver-

tising would not be eliminated by the broadcaster’s own coverage.

See text at pages [A-21 - A-23] supra & pages [A-25 - A-26] infra.

*7In Lee v. Board of Regents of State Colleges, W.D. Wis., 306

F.Supp. 1097 (1969), affirmed, 7 Cir., 441 F.2d 1257 (1971), the

court held that a school newspaper was obliged under the First

advertisement. “It is readily apparent,” it said, “that a paid adver-

tisement can be cast in such a form as to command much greater

attention than a letter to the editor. Large type, photographs,

A 26

an across-the-board ban on editorial advertisements—

leaving the quality of public debate in the control of one

licensee, supplemented by no other autonomous inputs—

may well ignore opportunities to enliven and enrich the

publie’s overall information.

We recognize, of course, that the onesidedeness and pri-

vate editing of particular “spot” editorial advertisements

may in the end steer viewers ‘and listeners away from

the “truth” by distorting complex, issues. Being brief,

these “spot” messages—no less than ‘normal broadcast

news coverage—may not canvass all possible arguments

or develop all possible implications of the position they

espouse. But that does not mean that they are unpro-

tected by the First Amendment. Our Constitution pro-

tects many forms of misleading. and overly simplified

political expression in order to ensure robust, wide-open

debate. “[Nleither factual error nor defamatory content

suffices to remove the constitutional shield from criticism’

of official conduct * * *.” New York Times Co. v. Sulli-

van, supra, 376 U.S. at 278. Nor does the brevity of the

criticism. We must, then, be very, very slow to judge

any sort of speech on public issues worthless. The mar-

ketplace of ideas protected by the First Amendment,

after all, is not governed by the tastes and intellectual

standards of the universities or the broadcast newsroom

—or even of judicial chambers.

We conclude, therefore, that the fairness doctrine’s

goal of full and fair coverage of issues on normal pro-

gramming time does not eliminate the public’s interest

in a further, complementary airing of controversial views

during advertising time. We must concur in the Su-

preme Court’s only recorded comments on constitutional

repeated publication and full pages of space are some of the modes

of expression available in an editorial advertisement that might

not be available in a letter to the editor.” Id. at 1101. Another

court has come to the same result in a newspaper editorial adver-

tising case. Zucker v. Panitz, S.D. N.Y., 299 F.Supp 102 (1969).

See text at pages [A-27 - A-29] infra.

A 27

protection for editoria] advertising—comments made in

the context of newspapers, like broadcasting a medium

which may be ex ted, if not required, to present the

The Court said that editorial] advertisements, unlike com-

mercial advertisements, are of fundamental First

Amendment concern, since they deal with politica] ques-

tions. And it protected them from libel law attack to the

Same extent as the newspapers’ own editorial columns,

“[a]ny other conclusion * * * might shut off an im-

portant outlet for the promulgation of information

and ideas by Persons who do not themselves have

their freedom of Speech even though they are not

members of the press, * * * The effect would be to

shackle the First Amendment in its attempt to se-

cure ‘the widest possible dissemination of informa-

tion from diverse and antagonistic sources,’ * * *”

New York Times Co. v. Sullivan, supra, 376 U.S. at 266.

ae.

We come now to the aspect of the broadcasters’ policy

which, petitioners Say, trenches on the First Amendment

interest in editorial advertising. The constitutional de-

the. First Amendment. However, the very characteristic

Which affords it strict constitutional protection is also -

the characteristic causing the broadcasters’ challenged

A 28

policy to single it out and exclude it from the airwaves.

That, we believe, is the crucial aspect of these cases.

It is important to note that petitioners do not attack

the exclusion of editorial advertising by broadcasters who

accept no advertisements whatever.” We do not have to

decide whether the broadcast medium inherently amounts

to a “public forum” on the order of public streets or

parks or meeting halls or even bus terminals.“ We leave

open the possibility that broadcasters may constitutionally

relinquish no time at all for advertising of any sort. For

the issue in these cases is the permissibility of discrimi-

nation, within a given block of advertising time, against

“eontroversial” speech and in favor of commercial and

“noncontroversial” speech. We deal here with a forum

that already has been opened up by the licensees them-

selves, opened up for direct broadcast presentations by

members of the public.

Fortunately, we do not write on a clean slate in this

area. Six courts have confronted discriminations among

types of speech like the one challenged here. Every one

of them—four federal courts and two state supreme

courts—has held that once a forum, subject to First

Amendment constraints, has been opened up for commer-

cial and “noncontroversial” advertising, a ban on “con-

troversial” editorial advertising is unconstitutional unless

39 DNC’s position is somewhat ambiguous. The ruling which it

requested from the Commission would, by its terms, apply to all

broadcasters, whether or not they accept any advertising. See text

at page [A-6] supra. However, on appeal DNC’s arguments have

been focused entirely on broadcasters who do already accept noncon-

troversial advertising. The interests of particular licensees in keep-

ing all advertising off the air were not explored before the Commis-

sion or before this court—for example, an all music station may have

a very substantial interest in broadcasting no paid announcements.

Because the special issues relating to such licensees were not pre-

sented here, we do not decide them.

40 See, e.g., Schneider v. State, 308 U.S. 147 (1939); Hague Vv.

C.1.0., 307 U.S. 496 (1939) ; Wolin v. Port of New York Authority,

supra Note 24. See generally Kalven, The Concept of the Public

Forum: Cox v. Louisiana, 1965 Sup. CT. REV. 1.

wn

A 29

clearly justified by a “clear and present danger.” Lee v.

Board of Regents of State Colleges, W.D. Wis., 306 F.

Supp. 1097 (1969), affirmed, 7 Cir., 441 F.2d 1257

(1971); Zucker v. Panitz, S.D. N-Y., 299 F.Supp. 102

(1969) ; Kissinger v. New York City Transit Authority,

§.D. N.Y., 274 F.Supp. 488 (1967) ; Hillside Community

Church, Inc. v. City of Tacoma, Wash., 455 P.2d 350

(1969) ; Wirta v. Alameda-Contra Costa Transit District,

64 Cal.Rptr 430, 4384 P.2d 982 (1967). We join this un-

broken line of authority.

First Amendment doctrine governing access to forums

for communication has been elaborated often in recent

years. The essential test is an exercise in balancing,

though weighted in favor of First Amendment values.“

On one hand, the court must assess the constitutionally

protected interest in the particular expressive activity in

the particular forum. On the other hand, it must assess

the importance of other uses of the forum which may be

threatened and ‘the extent to which they actually will be

disrupted. Access may be denied only if the disruption

caused by a particular type of expression (e.g., public

speaking, marching, picketing) clearly overrides the “pre-

ferred” interest in free speech. Thus there is some right

of access by demonstrators to state capitol grounds * but

not to a jailyard.**

Ordinarily, courts have to make the basic balancing

judgment on their own. However, when the administra- .

41 Most of the cases, other than those cited above in text, have

involved access to particular places in order to perform expressive

activities such as speaking, leafleting, or demonstrating in some

fashion. For general discussions of the cases and the principles

applied, see H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT

(paper etl. 1965); Note, Regulation of Demonstrations, 80 HARV.

L. REV. 1773 (1967). There is no reason why the general princi-

ples applied in cases involving access to places should not apply to

our cases involving access to a particular medium of expression.

See Note 24 supra.

*2 Coz v. Louisiana, 379 U.S. 536 (1965).

* Adderley v. Florida, 385 U.S. 39 (1966).

ee SEAT AE DRS RAS RO EE TAT OC Fe

—

A 30

tor of a forum has determined to grant access to some

speakers or some picketers, he has implicitly made that

basic judgment himself. When some public speaking is

allowed in a park, the park’s administrator has deter-

mined that the normal and proper functions of the park

will not be excessively harmed by public speaking. If

he then attempts to deny access to other public speakers

he cannot be heard to claim the opposite. The burden is

on him to show some very substantial factor distinguish-

ing the disruption that would cause from that caused by

the speaking or picketing already allowed.

The same principle applies to broadcasters who have

opened their forum to commercial speech but would close

it to controversial political speech. By opening up a

forum for some paid presentations, independently edited

and controlled by members of the public, the broadcasters

have waived any argument that advertising is inherently

disruptive of the proper function of their stations. The

exclusion of only one sort of advertising—which we have

shown to have great First Amendment value—is then

highly suspect, a prima facie constitutional violation. To

justify the exclusion, there must be a substantial factor

distinguishing the disruptive effect of.editorial advertis-

ing from that of commercial advertising.

The content of the idea which the excluded speakers

seek to promote is—emphatically—not permitted as a

distinguishing factor in itself. Indeed, the existence of

an exclusionary discrimination apparently based on the

content of ideas presents an additional, or greatly heigh-

tened, prima facie constitutional violation. Both free

speech and equal protection principles condemn any dis-

crimination among speakers which is based on what they

intend to say.‘ If the First Amendment prohibits any-

# For discussions of the First Amendment-equal protection inter-

section, see Blasi, Prior Restraints on Demonstrations, 68 MICH. L.

REV. 1482, 1492-1497 (1970) ; Kalven, supra Note 40, 1965 Sup. CT.

REv. at 29-80; Van Alstyne, Political Speakers at Universities:

Some Constitutional Considerations, 111 U. PA. L. REv. 328, 337-339

(1963).

wn

A 31

thing at all, it must be a censorial discrimination among

ideas. And since First Amendment rights have been held

to be “fundamental rights” triggering the strict standard

of review under equal protection principles, Williams v.

Rhodes, 393 U.S. 23, 30-31 (1968), it is doubly clear that

the burden of justifying any apparent discrimination is

very great indeed.

At least 20 years ago, the Supreme Court began con-

demning discriminations among different exercises of the

same type of expression. Fowler vy. Rhode Island, 354

U.S. 67 (1958); Niemotko v. Maryland, 340 U.S. 268,

272-273 (1951). Both cases involved access to a forum

already opened to others. More recently, the Court in

Cox v. Louisiana, 379 U.S. 536 (1965), invalidated a

state regulation that permitted labor picketing but not

civil rights picketing. In his concurrence, Mr. Justice

Black stated that this sort of discrimination is “censor-

ship in a most odious form” and violates both the First

Amendment and the equal protection clause. Id. at 581.

Similarly, in Adderley v. Florida, 385 U.S. 39 (1966), the

Court upheld a ban on demonstrations in a jailyard, but

was careful to note that “[t]here is not a shred of evi-

dence in this record * * * [the demonstrators were ex-

cluded] because the sheriff objected to what was being

sung or said by the demonstrators or because he disagreed

with the objectives of their protest.” Id. at 47.

No doubt a discrimination against all controversial

speech—such as we face in these cases—is somewhat less

“odious” than a discrimination among different contro-

versial viewpoints on particular issues. But it is a form

of censorship just the same. It is a favoritism toward

*SIn Wirta v. Alameda-Contra Costa Transit District, 64 Cal.

Rptr 430, 434 P.2d 982, 986 (1967 ), the California Supreme Court

came to the same conclusion as we do on this issue, saying:

“* * * The vice is not that the district has preferred one

point of view over another, but that it chooses between classes

of ideas entitled to constitutional protection, sanctioning the

a = ke Ps en on ac

as me —s = s

—

ETERS PS Pe OS:

A 32

the status quo and public apathy and, in these cases, a

favoritism toward bland commercialism.“ Such favorit-

ism flies in the face of the First Amendment, whose cen-

tral purpose is to protect and promote controversy, “unin-

hibited, robust and wide-open,” on public issues.

Moreover, it is by no means clear that a broadcasters’

ban on “controversial” advertising does not impermis-

sibly open the door to a sub rosa discrimination among

controversial ideas. The term “controversial” is extraor-

dinarily vague. Some advertisements may not be deemed

“eontroversial’”—and may not even be “controversial” for

purposes of the fairness doctrine ““—but may still express

ideas, the negative of which would surely be labeled ‘‘con-

troversial.” Ads for Radio Free Europe or Army re-

expression of only those selected, and banning others. Thus

the district’s regulation exercises a most pervasive form of

censorship. ~

«### [T]he district’s policy * * * affords total freedom of

the forum to mercantile messages while banning the vast ma-

jority of opinions and beliefs extant which enjoy First Amend-

ment protection because of their noncommercialism. No sta-

tistical data is required to demonstrate that in the totality of

man’s communicable knowledge, that which bears no relation-

ship to material value preponderates.”

The Supreme Court Of Washington specifically adopted this view in

Hillside Community Church, Inc. v. City of Tacoma, Wash., 455

P.2d 350, 353 (1969).

46 Commissioner Johnson commented in his dissent that broad-

casters “have created a system in which immediate access is granted

to one, privileged class of applicants: the commercial peddler of

goods and services. * * * We have an individual right of access, all

right, but only for hucksters of industrial garbage.” Democratic

National Committee, supra Note 1, 25-F.C.C.2d at 298.

4 See Banzhaf v. F.C.C., 182 U.S.App.D.C. 14, 405 F.2d 1082

(1968) ; Green v. F.C.C., —— U.S.App.D.c. ——, —— F2d ——

(Nos. 24470 & 24516, decided June 18, 1971).

In Wirta v. Alameda-Contra Costa Transit District, supra

Note 45, 484 P.2d at 987, the California Supreme Court made

the same point very forcefully, and provided several telling

examples:

[Footnote continued on Page A 33]

A 33

cruiting, for example, may be allowed unanswered on the

air, while ads calling the notion of the “free world” a

sham or ads calling the Army a threat to democracy

would be banned entirely. The line between ideological

and nonideological presentations is an almost impossible

one to draw. All too often in our society one particular

ideology—that of passivity, acceptance of things as they

are, and exhaltation of commercial values—is simply

taken for granted, assumed to be a nonideology, and

allowed to choke out all the rest,

Thus the editorial advertising ban, particularly when

licensees accept advertising generally, establishes an un-

mistakable infringing of First Amendment liberties. The

Commission and the broadcasters, then, bear a very heavy

burden of justification. Whether we require a “compel-

ling” justification, an “overriding” justification, or a

“clear and present danger’”’ is relatively unimportant.

VI

It being established that there is a strong and specific

First Amendment interest in editorial advertising and

that the policies discriminatorily barring such expression

work a prima facie violation of constitutional principles,

we must consider the countervailing considerations raised

by the Commission and the broadcaster-intervenors. In

order to justify the policy at issue, they must show some

very substantial harm that would be caused by acceptance

** [Continued]

“* * * A lumber company may advertise its wood products,

but a conservation group cannot implore citizens to write to

the President or Governor about protecting our natural re-

sources. An oil refinery may advertise its products, but a

citizens’ organization cannot demand enforcement of existing

air pollution statutes. An insurance company may announce

its available policies, but a senior citizens’ club cannot plead

for legislation to improve our social security program.”

“See generally C. WAXMAN (ed.), THE END oF IDEOLOGY

DEBATE (1969).

. eA aR

CRIME Peay e fin Pan ee NN ne De Beene EGS RS, oR RG Se

A et - AY ee ae sa

A 34

of editorial advertising—a sort of harm great enough to

override the First Amendment interests at stake and a

sort of harm not already involved in the acceptance of

commercial and “noncontroversial” advertising. Only

such a showing could convince us that the ban on edi-

torial advertisements is supported by sufficient counter-

vailing values and is not based solely on the content of

the ideas conveyed.

The Commission and intervenors have begun from the

assumption that our holding for petitioners would deprive

broadcast licensees of their highly prized editorial inde-

pendence and control over their frequencies, giving edi-

torial advertisers a right to air time which commercial

advertisers do not presently have. They have argued that

petitioners seek the right to “grab the mike” from broad-

casters’ hands.” The result, they say, would be a three-

fold disaster. First, they foresee “ ‘a return to the chaotic

situation of radio’s early days’” “ when too many hands

grabbing for too few mikes made successful broadcasting

impossible. Second, they argue that compulsory accept-

ance of editorial advertising would allow a few rich indi-

viduals or groups to buy up great blocks of time to pur-

vey views on only one side of important issues, thus gross-

ly unbalancing the broadcast station’s treatment of those

issues. And third, they point out that broadcasters com-

pelled to accept editorial advertisements on one side of

an issue would then be required by the fairness doctrine

to accept at least some advertisements on the other side

—free of charge if necessary. Provision of such free ad-

vertising time, they say, would cut into the broadcasters’

revenues and might bring financial collapse.

The arguments of the Commission and intervenors fall

well short of the mark. The reason is that they have

50 Statement of attorney for intervenor Columbia Broadcasting

System at oral argument before this court.

51 Brief for the Commission in Case No. 24,537 at p. 12.

A 35

apparently misunderstood the narrowness of the issue

here. All that we are considering is the permissibility

of a total, flat ban on editorial advertising. All petition-

ers ask is that broadcasters be required to accept some

editorial advertising. They do not advocate an absolute

right to air their advertisements. As the Red Lion Court

made clear, there could not be any such absolute right

because advertising time, like all broadcast time, is sev-

erely limited. See text at page [A-21] supra. Under the

Communications Act, broadcasters are not “common car-

riers” obliged to accept any advertising message that is

submitted. And petitioners do not argue that they should

be. What petitioners do argue is that editorial advertise-

ments should at least be considered and that some should

be aired.

Such a modest reform would not substantially under-

mine broadcasters’ editorial control over their frequen-

cies. For broadcasters would retain full latitude to con-

trol the content of their programming. Their editorial

control over non-advertising time would not be disturbed

whatever. All that would be affected is thelr allocation of

advertising time—an area in which editorial control over

content has never been of major importance. The interest

in deciding which advertisements to accept is not as great

as in deciding what public issues to cover and how to

cover them on news presentations, for example. See text

at page(s] [A-18- A-19], supra. It surely cannot be

47 U.S.C. §153(h) (1964). The Commission and intervenors

argue that this “common carrier” provision would be declared

unconstitutional if we were to decide for petitioners in these

cases. That, of course, is absolutely incorrect. The Commission

and intervenors also point to a part of the Communications Act

Providing that if a station permits one candidate for office to use

its facilities, it must then permit others equal time, but providing

also that “[n]o obligation is imposed upon any licensee to allow the

use of its station by any such candidaté.” 47 U.S:C. §315(a)

(1964). This statutory provision Squares perfectly with our hold-

ing that a broadcaster iS not necessarily obliged to provide any time

for advertisements, but that if he does sell some advertising time

he may not totally exclude editorial advertising

CEST RT SPS IPG ORL SOIL TEE EL TRS SPURS MOR NAIR

A 36

equated, as the Commission and intervenors suggest, with

the interest of law review editors in deciding what ar-

ticles to publish. See Avins v. Rutgers, State University

of New Jersey, 3 Cir., 385 F.2d 151 (1967), cert. denied,

390 U.S. 920 (1968). A broadcaster traditionally is not

nearly as involved in the preparation and editing of ad-

vertisements as a law review staff is in the preparation

and editing of articles.

Within the affected block of advertising time, neither

chaos nor anything approaching chaos would follow the

modest reform at issue. For, again, broadcasters would

retain wide-ranging control. It is well established in

First Amendment law governing access to forums that

“reasonable regulations’ may be promulgated and en-

forced to limit the exercise of free speech.** At the least,

there may be regulations determining the time, place and

manner of speech. They may not be used to stifle speech,

but they are absolutely necessary to see that too many

groups speaking at once do not drown out one another or

trench overly much on the normal uses to which the

forum is put by the public in general. The same principle

applies to broadcasters’ methods for allocating advertising

time. All that petitioners condemn here are regulations

providing that public issue advertising may be aired “at

no time, in no place and in no manner” over the broad-

cast media.

Clearly, for example, broadcasters are entitled to place

an outside limit on the total amount of editorial adver-

tising they will sell. To fail to impose some such limit

would be to deny the public the other sorts of program-

ming which it legitimately expects on radio and televi-

sion. Similarly, “reasonable regulation” of the placement

of advertisements is altogether proper. No advertiser has

a right to air his presentation at any particular point

88 See, e.g., Amalgamated Food Employees Union Local 590 V.

Logan Valley Plaza, Inc., 391 US. 308, 320 (1968); Note, supra

Note 15.

A 37

in an evening’s programming. Nor does he have a right

to clog a particular time segment with his messages. A

relegation of all editorial advertising to non-“prime time”

or any other major discrimination in the placement of

editorial advertisements would no doubt go too far. But

there is still room for broad exercise of the broadcasters’

discretion.

We need not define the precise control which broad-

casters may exercise over editorial advertising. Rather,

the point is that by requiring that some such advertising

be accepted, we leave the Commission and licensees broad

latitude to develop “reasonable regulations” which will

avoid any possibility of chaos and confusion. The spectre

of chaos and “mike grabbing” raised by the Commission

and intervenors here is, as petitioners say, a “bogus is-

sue.” . Broadcasters, after all, have dealt quite success-

fully with the scheduling problems involved with com-

mercial advertising. We require only that noncommercial]

advertisers be treated in the Same evenhanded way. Al-

though many broadcasters already do allow editorial ad-

vertisements on the air, we have not been shown one rea-

son, drawn from their experience, to suggest that chaos

has resulted.

Beyond the mistaken suggestion of administrative

apocalypse, the Commission and intervenors have raised

a more plausible and important claim, involving the dang-

er that a few individuals or groups might come to domi-

nate editorial advertising time. Of course, the mere fact

that wealthy people may use their opportunities to speak

more effectively than other people is not enough to justify

eliminating those opportunities entirely. It takes more

money to operate a magazine or newspaper—or, for that

matter, a broadcast station—than to buy a segment of

time for an editorial advertisement. Yet we are not re-

luctant to provide strict First Amendment protection for

the operators of magazines, newspapers and broadcast ‘

stations. The real problem, then, is not that editorial ad-

A 38

vertising will cost money, but that it may be dominated

by only one group from one part of the political spec-

trum. A onesided flood of editorial advertisements could

hardly be called the “robust, wide-open” debate which the

people have a right to expect on radio and television.

Again, however, invalidation of a flat ban on editorial

advertising does not close the door to “reasonable regula-

tions” designed to prevent domination by a few groups or

a few viewpoints. Within a general regime of accepting

some editorial advertisements, there is room for the. Com-

mission and licensees to develop such guidelines.* For

example, there could be some outside limits on the amount

of advertising time that would be sold to one group or to

representatives of one particular narrow viewpoint. The

licensee should not begin to exercise the same “authorita-

tive selection” in editorial advertising which he exercises

in normal programming. See text at pages [A-22 - A-23]

supra. However, we are confident of the Commission’s

ability to set down guidelines which avoid that danger.

We are no less confident of its ability to deal reason-

ably with the final problem it has raised—that relating to

licensees’ fairness obligations. Invalidation of a flat ban

on editorial advertising, of course, leaves the Commis-

sion the power to require that if editorial advertisements

are accepted on one side of an issue, then broadcasters

must also accept at least some advertisements on the oth-

er side of the issue, free of charge if necessary. See Cull-

man Broadcasting Co., 40 F.C.C. 576 (1963). The result

of such a reasonable regulation, however, need not be fi-

nancial disaster. Indeed, it is incredible that the Commis-

54 In the context of regulating demonstrations or picketing, guide-

lines which limit access because the same or similar groups had

already had substantial access would be unusual and perhaps im-

permissible. However, the interest in maintaining some degree of

balance on the broadcast media is particularly great. And “the

characteristics of news media justify differences in the First

Amendment standards applied to them.” Red Lion Broadcasting Co.

v. F.C.C., supra Note 7, 395 U.S. at 386.

A 39

sion would enforce a rule so rigid that licensees would be

driven out of business.* If the obligation to provide some

free time for answering editorial advertisements were

shown to threaten actual financial harm to particular

broadcasters, the Commission could make necessary ad-

justments.*

We conclude that none of the spectres raised by the

Commission and intervenors—spectres of chaos, grossly

unbalanced programming and - financial disaster—is

enough to justify a flat ban on editorial advertising. What

real problems there are may be dealt with while the ac-

ceptance of some editorial advertisements is required. The

keynote must be a scheme of reasonable regulation, ad-

ministered by the licensee and guided by the Commission.

. At least in the past, the Commission has not considered

this task so impossible. Twenty-five years ago it decided

a case in which a union charged that a broadcaster was

violating free speech rights by refusing to sell program

time for the airing of controversial views. The Commis-

sion stated:

“" * * The spirit of the Communications Act of

1934 requires radio to be an instrument of free

speech, subject only to general statutory provisions

imposing upon the licensee the responsibility of op-

erating its station in the public interest. * * *

“* * * No single or exact rule of thumb for pro-

viding time, on a non-discriminatory basis, can be

°° We note that the Commission’s requirement of free time for

antismoking was administered generously toward the financial con-

cerns of licensees and, indeed, few broadcasters seem to have been

deterred from accepting cigarette commercials as a result. See

National Broadcasting Co., Inc., 16 F.C.C.2d 947 (1969).

56 See Note, Fairness Doctrine: Television as a Marketplace of

Ideas, 45 N.Y.U. L. REv. 1222, 1249 (1970). We must be somewhat

skeptical of the talk about financial disaster. For, according to

Commissioner Johnson, television broadcasters at least “average

a 90 to 100 percent return on tangible investment annually.” N.

JOHNSON, How To TALK BACK TO YOUR TELEVISION SET 65 (1969).

(Emphasis in original.)

SE IOI LE EE VO DOG <i SORE RF ee

A 40

stated for application to all situations which may

arise in the operation of all stations. The Commis-

sion, however, is of the opinion that the operation

of any station under the extreme principles that no

time shall be sold for the discussion of controversial

public issues and that only charitable organizations

and certain commercial interests may solicit member-

ships.is inconsistent with the concept of public inter-

est * * *. The Commission recognizes that good

program balance may not permit the sale or dona-

tion of time to all who may seek it for such purposes

and that difficult problems calling for careful judg-

ment on the part of station management may be in-

volved in deciding among applicants for time when

all cannot be accommodated. However, competent

management should be able to meet such problems in

the public interest and with fairness to all concerned.

The fact that it placed an arduous task on manage-

ment should not be made a reason for evading the

issue by a strict rule against the sale of time for

any programs of the type mentioned.”

United Broadcasting Co., 10 F.C.C. 515, 517-518 (1945).

We agree with those views, and see no reason why the

Commission and broadcast licensees should be any less

competent in 1971 than they were in 1945. Given a

scheme of reasonable regulation, there is no reason why

acceptance of editorial advertising should cause any sub-

stantial harm or disruption not already involved in the

acceptance of other advertising. Therefore, to single out

and exclude editorial advertising is to violate the First

Amendment of the Constitution.

VII }

On the basis of the foregoing, we reverse the Commis-

sion’s decision that a flat ban on all editorial advertising

is permissible. However, we remand these cases to the

Commission for further consideration. On remand, the

Commission should develop reasonable regulatory guide-

lines to deal with editorial advertisements. Petitioners

_—

A4l

should be allowed to reapply for advertising time; and,

unless their presentations are found to be excludable und-

er the Commission’s guidelines, their applications should

be accepted. Since the issues on which BEM and DNC

seek to speak are current and changing, it is essential that

regulations be developed speedily and that the affected

broadcasters pass promptly upon petitioners’ applications

to buy time.

In the end, it may unsettle some of us to see an anti-

war message or a political party message in the accus-

tomed place’ of a soap or beer commercial. But we must

not equate what is habitual with what is right—or what

is constitutional. A society already so saturated with

commercialism can well afford another outlet for speech

on public issues. All that we may lose is some of our

apathy. That is a small price to pay. For, as the Su-

preme Court has said, “a function of free speech under

our system of government is to invite dispute. It may

indeed best serve its high purpose when it induces a con-

dition of unrest, creates dissatisfaction with conditions

as they are, or even stirs people to anger.” Terminiello

v. Chicago, 387 U.S. 1, 4 (1949).

Reversed and remanded.

McGowan, Circuit Judge, dissenting: The majority do

not hold that petitioner in No. 24,492 is entitled to have

its proposed spot announcements carried by the intervenor-

licensee there involved, or that the petitioner in No.

24,537 is assured of being able. to buy time for its pro-

grams on public issues. What is held is that the Consti-

tution commands that “some”, but not all, editorial ad-

vertising be accepted; and the Commission is directed to

embark upon rulemaking to determine how a licensee is

to differentiate the “some” from the all.

ee ees

SEES ENS TES PER

A 42

The majority appear to believe that this assignment will

not prove difficult. I am not so sure, particularly when

I note that the only Commissioner who has perceived the

same constitutional requirement as the majority responds

to the practical problems by suggesting that sales of a

significant proportion of the total broadcast time be made

on a first-come, first-served basis, accompanied by a pos-

sible suspension of the fairness doctrine. That approach

does not seem to me a promising one in terms of the

publie’s right to know.

The difficulties derive, of course, from the physical pe-

culiarity which distinguishes radio and television commu-

nication from all other forms, namely, the limited number .

of frequencies and the impossibility of accommodating all

who may wish to be heard over them. This, so the Su-

preme Court has said in Red Lion, makes it “idle to posit

an unabridgeable First Amendment right to broadcast

comparable to the right of each individual to speak, write

or publish.” The majority, in recognition of this fact, do

not purport to discern other than an “abridgeable” or

“limited” First Amendment right to initiate paid edi-

torial advertising. Petitioners themselves, it is said, may

conceivably never be able to insist that their particular

advertising be accepted. That will depend upon the rules

which the Commission propounds.

The Commission has, at the least, been set a task of

heroic proportions, and one whose very complexities may

undermine the premise upon which it is founded. The

question is whether the Constitution requires that it be

undertaken. I am not convinced that it does. It is pres-

ently the obligation of a licensee to advance the public’s

right to know by devoting a substantial amount of time to

the presentation of controversial views on issues of public

importance, striking a balance which is always subject to

redress by reference to the fairness doctrine. Failure to

do so puts continuation of the license at risk—a sanction

A 48

of tremendous potency, and one which the Commission is

under increasing pressure to employ.

This is the system which Congress has, wisely or not,

provided as the alternative to public ownership and op-

eration of radio and television communications facilities.

This approach has never been thought to be other than

within the permissible limits of constitutional choice. Its

existence provides a mechanism for implementation of

the public’s right to know which, by and large, has been

effective. Indeed, the loudest voices in criticism of it com-

plain that it. has been -working too well for the comfort

of governmental policy makers in the areas of greatest

current concern.

It is hardly the path of wisdom to scrap it for a sys-

tem in which money alone determines what issues are to

be aired, and in what format, even assuming, as is likely

to be the case, that those issues, whatever they may prove

to be, compare favorably with the intellectual content of

the great bulk of commercial advertising. The responsi-

bility for informing the public is now squarely on the li-

censee. That responsibility will only be diluted and ob-

scured by requiring the licensee, against his own better

judgment, to accept paid editorial advertising. I do not

think the First Amendment requires that result, at least

not within the context of a regulatory scheme which has

made provision for the airing of controversial issues of

public importance.

Of course it is true that licensees are currently free to

accept paid editorial advertising, and some do, subject al-

ways to the limitations of the fairness doctrine. It may

well be that a detailed inquiry and investigation by the

Commission of this area, by formal rulemaking or other-

wise, would be both useful and consonant with the Com-

mission’s continuing obligation to see to it that the public

mterest obligations of the licensees are being met in the

most effective way. The Commission’s currently an-

nounced purpose to undertake a comprehensive and wide-

i el ae Se oa a MC USS eS hd RS el oe SRS

A 44

ranging review of the operation of the fairness doctrine

might well include the subject of paid editorial advertis-

ing. But, believing as I do that the First Amendment

exerts no compulsion to the contrary, I would not order

the Commission to undertake that review in a constitu-

tional strait jacket which dictates the result in advance.

Bl

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1970

No. 24,492

BUSINESS EXECUTIVES’ MovE FOR

VIETNAM PEACE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES oF AMERICA, RESPONDENTS

PosT- NEWSWEEK STATIONS, CAPITAL AREA, INC.,

INTERVENOR

No. 24,537

DEMOCRATIC NATIONAL COMMITTEE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES oF AMERICA, RESPONDENTS

AMERICAN BROADCASTING Go., INC., INTERVENOR,

COLUMBIA BROADCASTING SYSTEM, INC., INTERVENOR

Petitions for Review of Orders of the Federal

Communications Commission

Before: Wright, McGowan and Robinson, Circuit J udges.

ae aa te J iets dae Wed Ee ge ay Daeg:

Ska i aa FE ¥

VAM SORIA TIT EES

B2

JUDGMENT

These cases came on to be heard on the records from

the Federal Communications Commission, and were argued

by counsel. On consideration thereof, it is

ORDERED AND ADJUDGED by this Court that the

orders of the Federal Communications Commission on

review herein are hereby reversed and the’cases are re

manded to the Federal Communications Commission for

further proceedings in accordance with the opinion of the

Court filed this date.

Per Curiam

For the Court:

Nathan J. Paulson

Clerk

Dated: August 3, 1971

Opinion by Circuit Judge Wright

Separate dissenting opinion by Circuit Judge McGowan

C1

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1971

No. 24,492

BUSINESS EXECUTIVES’ MOVE FOR

VIETNAM PEACE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, RESPONDENTS

POST-NEWSWEEK STATIONS, CAPITAL AREA, INC.,

INTERVENOR

No. 24,537

DEMOCRATIC NATIONAL COMMITTEE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA, RESPONDENTS

AMERICAN BROADCASTING CO., INC., INTERVENOR,

COLUMBIA BROADCASTING SYSTEM, INC., INTERVENOR

Before: Wright, McGowan and Robinson, Circuit Judges.

ORDER

On consideration of the petitions for rehearing filed by

Post-Newsweek Stations, Capital Area, Inc., American

C2

Broadcasting Companies, Inc., the United States of Amer-

ica and Federal Communications Commission, and Co-

lumbia Broadcasting System, Inc. for rehearing, and of

the brief of amicus curiae National Broadcasting Com-

pany, Inc. in support of the petitions for rehearing, it is

ORDERED by the Court that the aforesaid petitions

for rehearing are denied.

Per Curiam

October 4, 1971

D1

APPENDIX D

F.C.C. 70-861

BEFORE THE

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D. C. 20554

IN RE DEMocRATIC NATIONAL COMMITTEE,

WASHINGTON, D. C.

Request for Declaratory Ruling Concerning

Access to Time on Broadcast Stations

MEMORANDUM OPINION AND ORDER

(Adopted August 5, 1970; Released August 12, 1970)

BY THE COMMISSION: COMMISSIONER Cox CONCURRING

AND ISSUING A STATEMENT; COMMISSIONER JOHNSON

DISSENTING AND ISSUING A STATEMENT.

BACKGROUND—REQUEST AND PLEADINGS

1. On May 19, 1970, the Democratic National Com-

mittee (DNC) filed with the Commission a request that

the Commission issue a declaratory ruling that

“A broadcaster may not, as a general policy, refuse to

sell time to responsible entities, such as DNC, for the so-

.

licitation of funds and for comment on public issues.” 1

2. DNC seeks a declaratory ruling on these matters

because of its desire to purchase time on individual

broadcast stations and networks for the purpose of pre-

senting programs and Spot announcements of varying

duration, some of which would be devoted to the solicita-

tion of funds while others may contain comment on va-

RTE EEO LS DIOL LIE PRR IIIS tH

eee

D2

rious controversial issues of public importance. The cam-

paign envisioned will, according to DNC, require the ex-

penditure of “thousands of dollars” and thus it seeks as-

surance that it will be able “to obtain the access to the

broadcast media which implementation of the plan de-

mands.” It appears that in the latter part of March,

1970, CBS rejected a request by DNC to purchase one-

half hour of prime time for the presentation of an issue

—oriented program which would have included an appeal

for contributions to the Democratic Party. It is said that

CBS’ position at that time was that it would sell time

for political purposes only during election campaigns.

DNC also approached NBC and was told that that net-

work would make available prime time for purchase by

the Committee for a program presenting the views of

the party on important public issues and including a so-

licitation of funds for the party. It is not clear that

DNC approached the ABC network in view of the latter’s

alleged general policy against solicitation of funds other

than for charity and with network approval. By reason

of the foregoing and the alleged common policy of indi-

vidual broadcast stations to decline to sell time for spot

announcements or programs for the broadcast of views on

controversial issues of public importance or for the solici-

tation of funds, DNC states that its problem—access to

broadcast licensees for the presentation of its programs—

can be resolved only through the issuance of the blanket

declaratory ruling described in paragraph 1, supra.

3. We believe that the policy matters raised by DNC

are, to a substantial extent, appropriate for consideration

and that a full statement of our views will provide help-

ful general guidance for the public and Commission li-

censees. We, however, do not believe that all of the va-

rious matters raised by DNC are susceptible to the de-

claratory order sought and we cannot at this juncture

rule upon every conceivable factual situation which may

arise.

D3

4. In support of its request, DNC has set forth some

pertinent financial considerations of present-day political

campaigning and the development of a narrow rather

than a broad-based financial] Support of political parties.2

DNC contends that access to mass media, particularly ra-

dio and television, is necessary to attract the attention

and seek the support of potential small political contribu-

tors. It is only in this way, DNC contends, that a healthy

political system can function: DNC urges that its pro-

posed broadcast campaign should not be precluded by a

variety of differing station and network policies and that

the question of access to broadcast media for responsible

groups should be subject to a uniform national policy.

The arguments advanced by DNC are based upon ¢on-

stitutional, statutory and public policy grounds,

5. The constitutional argument advanced by DNC is

essentially that the Supreme Court’s decision in Red Lion

Broadcasting Co., Inc. v. F.C.C., 895 U.S. 867 (1969 ) re-

affirmed the publie’s First Amendment right to hear con-

trasting views on issues of public importance and “em-

ployed language that would extend to members of the

public the right of access to broadeast facilities.” DNC

the law as expressed in Red Lion, supra. DNC suggests

that under the Red Lion standard reasonable restrictions

? For example, in 1968, $90 million was expended on politica] use

of radio and television (equaling about 1/3 of the total expenditure

of the contributions to the Democratic Party exceeded $500

poy! Pg had oe hog almost 80% in 1968. Accord-

narrowing political contribution base can

dangerous concentration of the sources of revenue in

cratic pcrest groups which, in turn, threatens the entire deme

EEG PP aga or PEE? Ae ee oe ee) ee

a

D4

tion against use of facilities for libelous presentations or

those in bad “taste.”

6. According to petitioner, the overriding public policy

consideration requiring the declaratory ruling is that the

public airwaves—the most powerful communications me-

dium in our society—which are used to solicit funds for

“soaps, brassieres, deodorants and mouthwashes” should

be utilized to solicit funds to enhance the exchange of

ideas. DNC contends that regardless of whether the

Commission issues the declaratory ruling requested, the

refusal of a broadcaster to sell time to DNC should be

evaluated adversely to such broadcaster at time of re-

newal. The reason for this, DNC urges, is the importance

of the broadcast media to political expression (Farmers

Ed. and Coop Union v. WDAY, 360 U.S. 525, 529-30

(1959)); the public interest consideration inherent in

broadeasters making time available for political broad-

casts (Report and Statement of Policy, Re: Commission

En Bane Programming Inquiry, 20 RR 1901 (1960));

the Commission’s prior holding that an arbitrary limita-

tion of coverage of an election campaign prior to the cam-

paign was contrary to the public interest (Citing Homer

R. Rainey, 3 RR 737 (1947); City of Jacksonville, 12

RR 113, 180j (1959); and Loyola University, 12 RR

1017, 1099 (1956)) and that the Commission’s ruling in

Women’s Strike for Peace (letter of November 22, 1965)

predates Red Lion and, to the extent it conflicts with that

decision, is no longer controlling. Finally, DNC notes

that it is seeking not a ruling which would require a

broadcaster to accept particular programs or announce-

ments, but only that broadcasters may not establish arbi-

trary barriers to access by responsible groups, such as

DNC, contrary to the First Amendment and Red Lion,

supra, or that the establishment of such barriers is con-

trary to the public interest.

7. Response of the Networks: In response to the DNC

request, American Broadcasting Companies, Inc. (ABC)

D5

submitted portions of its “standards and policies” (The

complete version has been filed in BAL-5738, Exhibit I-B,

Attachment B, Section III). ABC recites its standards

relating to solicitation connected with appeals for charity

(no solicitation without specific permission of ABC) and

appeals related to religious broadcasts (solicitation per-

mitted in prescribed manner not. here relevant), but states

- that its policy is not to sell time for solicitation of funds

in other situations, absent special public interest consid-

erations. It is ABC’s judgment that DNC’s request is con-

cerned with “the continued strength and viability of our

two party system” and is thus a “special public interest

consideration” justifying an exception to its normal policy

of not selling time for solicitation purposes.

8. ABC states that with respect to controversial issues

of public importance, there are “dozens” of “responsible

entities” who would wish to purchase time to present

their views “were we to open the door.” ABC contends

that it would be “reasonable to anticipate a flood of such

requests.’ Thus, ABC states, it wil] adhere to its general

policy against the sale of time for controversial] issue pro-

grams and announcements, However, ABC under its

“special public interest consideration” standard would

“.+ + be prepared, consistent with its other obligations, to

accept such orders for time from major political parties

as can be accommodated on a reasonable basis.”

a. CBS’ lengthy response to the DNC complaint ad-

vances three major arguments: (1) that DNC has mis-

understood CBS’ policies relating to presentation of con-

troversial issues and that CBS’ policies insure full and

fair presentation of such issues; (2) that a regulatory

policy which imposes eommon carrier obligations on

broadcasters would be contrary to the public interest;

(3) that there is no constitutional or statutory right to

compel broadcasters to carry the DNC programs; and,

(4) that such obligation would be contrary to the Commu-

nications Act and Commission precedent.

>... iii Nt ee WD SANG

D6

9. With respect to the first major argument, CBS

argues that DNC has not alleged violation of the fairness

doctrine but rather seeks to take presentations of contro-

verial issues away from the control and supervision of

the licensee. CBS states that if licensees were required

to permit the purchase of air time for the presentation

of views on controversial public issues, the nature of

broadcasting would be radically altered to the detriment

of fair, objective and balanced information available to

the listening public.* CBS has followed a policy of re-

fusing the sale of broadcast time for presentations of

controversial issues in favor of providing “significant

opportunities” for such discussions without charge to

proponents of various viewpoints through news and in-

formation broadcasts. To sell time for presentations on

public issues, argues CBS, would result in the preemption

of the limited broadcast frequencies by those with strong

financial resources which would “necessarily distort the

manner in which issues were presented” to the public.

CBS asserts that under its present policies, it provides a

“high proportion of direct presentations of views” by “the

actors in the events of the day” and thus, aside from

. fully informing the public of differing viewpoints on con-

troversial issues, also provides an opportunity for those

holding differing viewpoints to present their own views.

These direct presentations, CBS notes, are part of its

overall effort to inform the public fully and fairly and

3’ CBS asserts that it has served the public by presenting issues

and viewpoints within a balanced program schedule utilizing news-

worthiness as the sole criterion. CBS emphasizes the growth of

public affairs and news presentations during the 1968-69 v. 1956-57

—e.g., total hours of news and public affairs broadcasting—1,354

v. 675; prime presentations—192 v. 34; regularly scheduled hard

news 6:00 p.m.—11:00 p.m., 338 v. 180; and total hours ‘of news

documentaries 100 v. 37. In addition, CBS also presents a compre-

hensive exhibit to demonstrate the coverage given one of the major

issues of the day by CBS and WCBS-TV—the Indochina War and

domestic reaction to it. This Indochina exhibit includes a minute

and second analysis of CBS’ total coverage of this issue and runs

over 100 pages.

D7

are not permitted to become an instrument of “partisan

advocacy.” The First Amendment, CBS argues, is pri-

marily concerned with the right of the public to be in-

formed—as opposd to the right of the public to speak or

to be heard.

10. CBS’ policy against sale of time for the presenta-

tion of views on controversial issues does not apply to

broadcasts on behalf of political candidates or ballot prop-

ositions. This exclusion is based upon CBS’ belief that the

intent of Section 315 is to facilitate the discussion of

political issues by legally qualified candidates; such poli-

tical broadcasts may include a direct appeal for funds so

long as CBS is not involved in the collection or handling

purchase of a special category of Spot announcement (up

to one minute in length) for the purpose of political fund

raising which need not be on behalf of political candi-

dates or ballot propositions.

1l. With respect to the common carrier argument,

CBS states that such a policy would be contrary to the

public interest because partisan presentations would di-

tertainment programs and would result in an “auction”

to the highest bidder to determine what issues will be

12. The legal arguments which CBS advances—i.e.,

that DNC’s request is without constitutional or statutory

®

~~ RET ANTE PTL EE eR EAE CR

. Re 7 » “ -

v

D8

basis, that Commission compulsion to carry DNC’s pro-

grams is barred by the Communications Act, and that the

action which DNC requests of the Commission is con-

trary to the Commission’s own policy and precedent—

are based primarily upon the assertion that no particular

person or group has the right to speak over broadcast fa-

cilities and that to assert such a right would ultimately

require the Commission to assume the role of a censor or

arbitor of specific programs, contrary to its long-estab-

lished policy of avoiding such governmental involvement.

CBS asserts that the McIntire case* stands for the propo-

sition that “broadcasters, though licensed by the Commis-

sion and subject to its valid regulations, are not publicly

owned facilities, and there is no First Amendment right

to purchase time on radio or television stations.” CBS

further asserts that nothing in Red Lion® indicates that

McIntire is no longer good law or that, apart from Sec-

tion 315, there is any legal obligation for broadcast licen-

sees to sell time. Rather, CBS says, Red Lion merely sus-

tained long-standing Commission policies which are wholly

inconsistent with DNC’s request.

13. To accede to DNC’s request, CBS argues, would

violate Sections 3(h) and 326 of the Communications

Act, which taken together establish that the licensee—not

the Commission—is to exercise the power of program se-

lection. The right of personal reply to material pre-

viously selected for broadcast is limited to equal opportu-

nity for political candidates, replies to personal attacks

and replies to station political endorsements. CBS con-

tends that the legislative history of the Communications

Act supports its assertion that the statutory scheme en-

visions a system in which the broadcaster is left with the

initiative of assuring that programs presented are in the

public interest.

4 McIntire v. Wm. Penn Broadcasting Co., 151 F.2d 597 (8rd

Cir. 1945) cert. den. 827 U.S. 779 (1946).

5 Red Lion Broadcasting Co., Inc. v. F.C.C., 895 U.S. 867 (1969).

D9

14. Finally, CBS asserts, DNC’s request is “funda-

mentally inconsistent” with the concept of licensee re-

sponsibilities and specifically, contrary to the Commis-

sion’s prior holdings that “the Commission has no power

to require a broadcaster to carry or refrain from carry-

ing any particular program, or to prescribe the content

of any program presented over the air.” Letter to

Women’s Strike for Peace, November 22, 1965. Nothing

in the Red Lion decision, supra, states CBS, indicates that

the Court contemplated the abandonment of “traditional

FCC fairness policies” and the adoption by the FCC of a

common carrier theory as set forth in the DNC request.

15. NBC has no policy which would prevent the pur-

chase of program time envisioned by DNC or the solici-

tation of funds for the party during such a program.

DNC states that it is not clear whether N BC would per-

mit short spot announcements designed for the solicita-

tion of funds for a party, but this simply points up the

desirability of a concrete factual situation—namely, of

DNC making a specific request, instead of the general,

more vague approach which it has taken here.

DISCUSSION

Part I. The right of responsible entities to purchase time

for comment on public issues

16. The DNC petition raises two Separate questions:

(i) the asserted right of political parties to purchase

broadcast time to solicit funds, and (ii) the asserted right

of responsible entities to purchase time for comment on

public issues. In this Part I, we deal with the second

question.

*To support this Proposition, CBS also cites McIntire v. Wm.

Penn Broadcasting Co., supra; 1949 Editorilizing Report, 18 FCC

1246; 1960 Report and Statement of Policy in the En Bane Pro-

gramming Inquiry, 25 Fed. Reg. 7291 (August 8, 1960) ; and letter

to Judy Collins, March 24, 1970.

4 EAI LN RE STENT DENCE oman me a Kees: OPES

a&

i

D 10

17. That question goes to the heart of the ‘system of

broadcasting which has developed in this country—i.e.,

the licensing of private entities under the public interest

standard. While the issues raised by the DNC petition

are fundamental, they are not open. They have long been

settled adversely to the DNC position, by the statute, by

the Commission, and by the Courts. We shall discuss the

present system and its statutory support, the relevant

precedents, and the policy considerations.

18. The system which Congress has evolved has been

described in full in the landmark decisions in this field—

NBC v. U.S., 319 U.S. 190 (1948), and Red Lion Broad-

casting Co. Inc. v. F.C.C., 395 U.S. 367 (1969). We shall

not repeat that discussion here. It is sufficient to note

that it is based upon the unique nature of radio—that

“unlike other modes of expression, radio inherently is not

available to all. Because it cannot be used by all, some

who wish to use it must be denied.” (NBC v. U.S., supra,

at 226.)7 To resolve the chaotic situation which had re-

sulted, Congress decreed a system of licensing private

entities for short terms, upon the condition that their

operations serve the public interest. It is thus incumbent

upon these public trustees to fashion schedules which do

meet the needs and interests of the public. To do so, the

broadcaster must allocate programming among the sev-

eral categories (e.g., entertainment, instruction, news,

public affairs) and, within those categories, must choose

among the many competing requests for air time. See

Report on Editorializing, 18 FCC 1246, 1247-48 (1949).

However, there is one special obligation which the Com-

mission has stressed—that broadcasters must “. . . de-

vote a reasonable percentage of their broadcast time to

™ The Court recently reaffirmed this vital distinction in Red Lion

(supra, at 388): “Where there are substantially more individuals

who want to broadcast than there are frequencies to allocate, it is

idle to posit an unabridgeable First Amendment right to broadcast

comparable to the right of every individual to speak, write or

publish.”

D 11

the presentation of news and programs devoted to the

consideration and discussion of public issues of interest

in the community served by the particular station” (id.

at p. 1249). Indeed, the Commission has stressed that it

has allocated so much Spectrum space to broadcasting,

short, as stated by the Court in Red Lion, supra, at p.

394, the licensee is “ . . given the privilege of using

scarce radio frequencies as proxies for the entire commu-

nity, obligated to give suitable time and attention to mat-

ters of great public concern,”

19. The Commission has consistently made clear that

with some exceptions not here pertinent; the licensee has

discretion in discharging that obligation. Thus, in its

basic Editorializing Report, the Commission stated:

party has already received a sufficient amount of

broadcast time, or whether there may not be other

ay

D 12

available groups or individuals who might be more

appropriate spokesmen for the particular point of

view than the person making the request ....

This same policy is set out in the Commission’s 1964

Fairness Primer, 29 Fed. Reg. 10415, 10416; cf. also

1960 Programming Statement, 25 Fed. Reg. 7291 (1960).

In line with these general precepts, we have consistently

held, in case after case, that with certain exceptions not

here involved, no individual has a right to express his

particular views by means of a broadcast facility.®

20. While the licensee thus has considerable discretion

in discharging “the twofold duty” stated in Red Lion,

supra, at 377—to devote a reasonable amount of time to

public issues and to do so fairly—that discretion must be

exercised consistent with the public interest standard.

The most basic consideration in this respect is that the

licensee cannot rule off the air coverage of important is-

sues or views because of his private ends or beliefs. As

a public trustee, he must present representative commu-

nity views and voices on controversial issues which are of

importance to his listeners (Red Lion, supra, at 389, 390,

394). This means also that some of the voices must be

partisan. A licensee policy of excluding partisan voices

and always itself presenting views in a bland, inoffensive

manner would run counter to the “profound national

commitment that debate on public issues should be unin-

hibited, robust, and wide-open.” New York Lines Co. v.

Sullivan, 376 U.S. 254, 270 (1964); see also Red Lion

Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367, 392 (n.

18) (1969); Storer Broadcasting Co., 11 FCC 2d 678

(1968) ; Anti-Defamation League of B’nai B’rith, 9 FCC

2d 190, 191 (1966), affirmed Anti-Defamation League v.

8 Dowie A. Crittenden, 18 FCC 2d 499 (1969); Mrs. Margaret

Z. Scherbina, 21 FCC 2d 141 (1969); Democratic State Central

Committee of California, 19 FCC 2d 833 (1968) ; Boalt Hall Student

Association, 20 FCC 2d 612 (1969); Mrs. Madalyn Murray, 40

FCC 647 (1965).

D 13

F. C. C., 403 F. 2d 169, 170 (1968) (C.A.D.C.), cert.

den. 394 U.S 930 (1969). In sum, as stressed in the

Editorializing Report, supra, at p. 1249:

It is this right of the public to be informed, rather

than any right on the part of the government, any

broadcast licensee or any individual member of the

public to broadcast his own particular views on any

matter, which is the foundation stone of the Ameri-

can system of broadcasting.

See Red Lion Broadcasting Co. Inc. v. F.C.C., supra, at

p. 390:

It is the right of the public to receive suitable ac-

cess to social, political, esthetic, moral and other

ideas and experiences which is crucial here.

21. With this as background, we turn to the DNC pe-

tition. That petition seeks to overrule the above policy

and to require licensees to sell time to any responsible

entity to comment on a public issue. Using the CBS re-

sponse as an example, we note that it would require a

holding that CBS’ policy in this area is inconsistent with

the public interest, because although it recognizes its ob-

ligation to devote a reasonable amount of time to contro-

versial issues of public importance (and has submitted a

showing of its increasing efforts in this respect, includ-

ing during prime time hours), and to do so fairly by pro-

viding “. . . significant opportunities for such [broadcast]

discussion without charge to partisans of various view-

points in [its] news and information broadcasts” (p. 3,

CBS Response), CBS will not sell time for the expression

of viewpoints on public issues (with the exception of

political broadcasts). It is important to bear in mind

that DNC has not alleged that CBS or any other licensee

has failed to discharge the above-noted obligations of the

fairness doctrine. Thus, what is involved in the DNC

request is a question whether there is a right of access

to broadcast facilities by “responsible entities” over and

~<a WT we TO te ese isreee OO PIR Ce Ni a ci POOPIE i, Oe Pee ?

D 14

beyond the fairness doctrine right of the public to be

informed.

_ 22. The DNC position—that the licensee, upon request,

must sell time to any responsible entity for comment on

public issues—runs counter to the statutory language

and the legislative history. That history shows that Con-

gress specifically debated and rejected the idea of the

licensee being required to act as a common carrier with

respect to transmission of comment on public issues. See

Sen. Rep. No. 772, 69th Cong., 1st Sess., p. 4; 67 Cong.

Rec. 5560-5561, 12501-12504. The Act reflects this. Sec-

tion 3(h) states that a broadcaster shall not be deemed

a common carrier. Section 315(a) sets out the pertinent

statutory standard—that the licensee must operate in the

public interest and must afford reasonable opportunity

for the discussion of conflicting viewpoints on controver-

sial issues of public importance. This language cannot be

squared with the DNC position; had Congress adopted

such a position, the statutory prescription would have been

entirely different (e.g., ... “including the sale upon re-

quest of time to responsible entities for presentation of a

viewpoint on controversial issues of public importance”).

The legislative history makes clear that the language of

Section 315(a) is a “restatement of the basic policy of-

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

ers under the Communications Act of 1934” (H. Rep. No.

1069, 86th Cong., 1st Sess., p. 5 (1958)—that is, as the

legislative history shows, the principles set forth in the

basic Editorializing Report. That this is the statutory

scheme is further shown by the consideration of the

second sentence of Section 315 (a)—that “no obligation is

hereby imposed upon any licensee to allow the use of its

station by any such candidate.” The purpose of this pro-

vision is to make clear that the broadcaster is not a

common carrier as to political broadcasts—that he may

exercise discretion as to the time to be afforded broad-

casts by candidates. See Memorandum of F.C.C., Hear-

-_

D15

ings before the House Subcommittee of the Interstate and

Foreign Commerce Committee, 88th Cong., 1st Sess. on

H. J. Res. 247, pp. 84-90 (1968) (to the effect that while

the licensee has discretion, he cannot adopt a policy of

not devoting a reasonable amount of time to political

broadcasts). It would make no sense to hold that the li-

censee has discretion whether or not to sell time for the

most important controversial issue programming of all—

the political broadcast by the candidate (see discussion

within as to the preferred position of such programming),

but has no such discretion as to other controversial issue

programs (e.g., by a candidate’s supporters; by partisans

of a particular viewpoint on some public issue).

23. The administrative and judicial precedents reflect

the statutory scheme. The Commission’s pronouncements

are long established and consistent. See, e.g.,-Report on

Editorializing, 18 F.C.C. 1246, 1249 (1949); 1960 Pro-

gramming Statement; Women’s Strike for Peace, Novem-

ber 22, 1965. The court cases are to the same effect. Mc-

Intire v. William Penn Broadcasting Co., 151 F. 2d 597,

600-601 (C.A. 3), cert. den. 327 U.S. 779; Massachusetts

Universalist Convention v. Hildreth and Rogis Co., 183

F. 2d 497, 501 (C.A. 1). DNC argues that these cases

are no longer relevant in light of the Court’s decision in

Red Lion, and that that decision establishes the correct-

ness of its position. We do not so read Red Lion. The

Government’s brief pointed up the nature of the licensee’s

responsibility under the Editorializing Report, supra, at

pp. 14-17, 31-32, and the Court recognized the report “as

the principal summary of [the Commission’s] ratio deci-

dendi in cases in this area” (p. 1251). The Court at the

outset noted “the twofold duty” imposed by the Editorial-

izing Report and the manner in which the obligations

under the general fairness request differed from those

under the personal attack corollary (pp. 371-379).° The

®Thus, the Court stated: “These personal attack and political

editorializing obligations differ from the general fairness require-

EO ELE LEE LD CMT ERG ELIT LENORE

a

D 16

Court’s decision is based, we believe, on this foundation.

The thrust of that decision is not that the broadcast li-

censee is a common carrier, required to sell time to all

comers on public issues, but rather that he is a public

trustee—a proxy—who must present representative com-

munity views and voices on controversial issues. The

Court’s decision thus stresses the right of the public to be

informed—not the right of the broadcaster or any indi-

vidual or group to speak over broadcast facilities. The

private censorship by broadcasters which the Court rules

out is that which would prevent the presentation of rep-

resentative community views or voices.

24. There are strong policy arguments in support of

the Congresssional scheme. We have noted that broad-

casting is inherently not open to all (paragraph 18,

supra). That is true equally with respect to the common

carrier access approach urged by DNC. The result could

well be a return to the chaotic situation of radio’s early

days. Since the broadcast medium is a limited one, the

amount of time to be devoted to public affairs—as against

the other needs and interests of listeners—is also limited.

This balance between the categories could be drastically

skewed by a requirement that the broadcaster must make

available time slots for the discussion of a controversial

issue. Further, the public’s agenda for discussion of pub-

lic issues would then be set substantively and increasing-

ly by the affluent—by the person or group which “.. .

has the financial resources and interest to purchase sus-

tained access to the mass communications media . . .”

(Banzhaf v. F.C.C., 405 F. 2d 1082 (C.A.D.C. 1968),

ment that issues be presented, and presented with coverage of com-

peting views, in that the broadcaster does not have the option of

presenting the attached party’s side himself or choosing a third

party to represent that side. But insofar as there is an obligation

of the broadcaster to see that both sides are presented, and insofar

as that is an affirmative obligation, the personal attack doctrine and

regulations do not differ from preceding fairness doctrine.” Red

Lion Broadcasting Co., Inc. v. F.C.C., 895 U.S. at 878.

D17

cert. den., 396 U.S. 842). Since the amount of broadcast

time for discussion of controversial issues is limited and

since the licensee must afford reasonable opportunity for

discussion of both sides, the purchase of substantial blocks

of time for a campaign by, say, the oil industry to discuss

the issue of the oil depletion allowance would impose the

burden to present reasonably the other viewpoint, and in

turn would inevitably cut down on the amount of time

for discussion of other issues. But we believe that such

allocations of limited time are to be made on the basis of

the public interest—not that. of any private group, how-

ever powerful or affluent. Further, the public trustee

would lose control over the important aspect of the man-

ner in which the public is to be informed. We recognize

that in some instances short Spot announcements may

serve a useful purpose in this area (see infra, p. 17). But

we have also pointed up the limitations as to many issues

of this manner of informing the public. See e.g., Hear-

ings before the Senate Commerce Committee, H.R. 6543

(1969), pp. 142-148; Voters Time Rept., p. 15. A li-

censee which reasonably made the judgment that an issue

was too complex to be discussed in a 30-second commercial

—that “hawking” the issue like a soap did not serve the

public interest—would find that judgment frustrated by

the DNC policy; it would be required to sell the spots and

ordered to make time available to opponents on a similar

basis. See Cullman Broadcasting Co., 40 FCC 516 (19638) ;

KING Broadcasting Co., 10 FCC 2d 968, 970 (1967).

25. This last point—the application of Cullman—mer-

its further discussion. The Cullman principle was de-

veloped to deal with the situation where the broadcaster

has sold time to one side to present its views, has not pre-

sented or made plans to present the contrasting view-

points, and rejects programming which he deems suitable

to present those viewpoints, unless the party offering such

programming will pay for its presentation. We held that

the licensee could not properly insist upon payment in

D 18

such circumstances. The paramount public interest, we

stressed, is the right of the public to be informed. The

licensee has adjudged that an issue is of importance to its

area by presenting the first viewpoint; that being so, the

public’s right to hear the other: side cannot turn on

whether the licensee received money.’® This approach per-

fectly fits the public trustee concept. It does not fit a

common carrier approach. For under the latter system,

the licensee has to sell the time, no matter the amount,

and then finds himself having to afford free time to the

proponents of the contrasting viewpoint, again no matter

what the effect on his ability to serve the public inter-

est. Further, under a common carrier approach, each

side is usually relegated to purchase, with no “Cullman”

rights. We believe that Cullman is a correct and sound

doctrine which ties in with the public trustee concept and

best serves “the public interest in the larger and more

effective use of radio” (Section 303(g) ).

26. In connection with the above discussion, we should

note that there is of course no Commission policy thwart-

ing sale of time to comment on public issues. Licensees

are free to do so, with the caveat that the fairness doc-

trine, including the Cullman aspect, must be observed.

The critical issue is whether the licensee, to discharge

either of “the twofold duties” noted at the outset—to de-

vote a reasonable amount of time to issues of public im-

portance and to do so fairly—must sell some time to

comment on public issues. The foregoing discussion

makes clear that the licensee need not do so. If, for ex-

ample, CBS chooses not to sell time but rather to fulfill

its obligation on a sustaining basis in the manner dis-

closed in paragraph 9, supra (e.g., to provide significant

free opportunity for partisan presentations), that choice

is within its discretion. What is crucial is that the licensee

does meet its obligation “to operate in the public interest

10 For the different application of Cullman to the political broad-

cast field, see Letter to Nicholas Zapple, FCC 70-598 (1970).

D19

conflicting views on issues of public importance” (Sec-

tion 315(a).)

and afford reasonable opportunity for the discussion of

27. Finally, we point out that the Commission does

recognize the importance of fostering “a multitude of

voices” in the discussion of public issues. Thus, it sought

to promote the growth of FM radio, UHF television, and

noncommercial educational broadcasting, and is seeking

to promote a new technology which can make a most sig-

nificant contribution in this respect—cable television.

Because of the potentially great number of channels, cable

opens up the possibility of common carrier channels, pub-

lic access channels, etc. See Notices of Proposed Rule

Making In Dockets Nos. 18397A and 18874, 23 F.C.C.

28. At the risk of some repetition (see particularly

pars. 24, 25), we believe it appropriate to take up the

position set forth in the dissent of Commissioner John-

son.’ We cannot accept the position of the dissent that

the course we are taking conflicts with the First Amend-

public facility,

er publicly or privately owned), and that once the facility

is appropriately opened for the expression of views on

public issues

of First Ame

"That dissent ig addressed also to the Commission’s decision in

the BEM case, F.C.C. 70 ——, issued this day.

t Our discussion here

is of course equally applicable to the BEM case, and we so stated

in that opinion.

ax,

D 20

announcement constituting constitutionally protected

speech by one willing to pay the customary rate, if there

is ordinarily a charge. While we need not disagree with

the premise that the Commission’s regulation of broad-

cast stations under the Communications Act must meet

First Amendment standards, we think that the dissent—

because it ignores established First Amendment policy in

this area—posits a non-existent individual right of access

to broadcast facilities.

29. First of all, to the extent that the dissenting opin-

ion urges a near-absolute right of any person who has

the money to buy time, it would create a common carrier

situation which Congress after due deliberation specific-

ally rejected in Section 3(h) of the Communications Act,

47 U.S.C. § 158(h). Apparently recognizing this collision

with the statute, the dissent states (page 25) that Con-

gress and the Commission have permitted a form of pri-

vate censorship which is inconsistent with the First

Amendment. We must note in this connection that it is

beyond the power of an administrative agency to declare

its governing statute to be unconstitutional. Central Ne-

braska Pub. P. & I. Dist. v. Federal Power Commission,

160 F. 2d 782, 783 (C.A. 8, 1947). However, if that in-

firmity did not exist, we would have no constitutional

qualms: about our present decision.

30. In its assertion of the unconditional (except for

suggested reasonable limitations on time, place and man-

ner) * right to buy time, the dissenting opinion takes no

account of the basic, constitutionally valid policy of the

Communications Act that because radio is “inherently

not available to all,” National Broadcasting Co. v.

United States, 319 U.S. 190, 226, there is a public duty

adhering to the acceptance of a license to give adequate

coverage to public issues which reflects opposing view-

12 The dissent also mentions quality standards, an exception which

is hardly consistent with its argument.

=~

D21

points, if necessary at the broadcaster’s own expense.

Red Lion Broadcasting Co. v. Federal Communications

Commission, 395 U.S. 367. See also 47 U.S.C. § 315(a).

As Red Lion makes clear, the licensee is a fiduciary with

obligations to present views and voices which are repre-

sentative of his community. It is through this basic ap-

proach that the paramount right and interest of the pub-

lic to be fully informed is protected. The operator of a

public park or transit system has no such obligation; if

the analogy offered by the dissent were valid, a broad-

caster would be free to present only one side of every

public issue’so long as he did not reject any one who

chose to speak. There would be no obligation to present

the other side, let alone the obligation imposed by Cull-

man Broadcasting Co., 25 R.R. 895 (1963) to put on an

opposing view without charge. It is clear, therefore, that

the analogy to other types of facilities that carry speech

to the public, or furnish a place for speech, is fatally

faulty.

31. Furthermore, the dissent fails to be adequately

specific in detailing the types of limitation which it would

permit as inroads to the general principle of an absolute

right of access. Presumably, the licensee would not have

to turn over all of its time on a first come, first served

basis, for this would mean that the issues discussed and

the persons speaking would be governed entirely by

money. But even if the dissent would permit the licensee

to specify amounts of time and issues, the suggested sys-

tem would appear to be unsound. First of all, the indi-

vidual right upon which the whole dissent is premised

would largely disappear. No person would have the right

to discuss an issue of his choosing, at the time of his

choosing, and for a duration of his choosing. How could

the licensee validly determine that a particular speaker

could effectively make his argument in 10 minutes, 5

minutes or a 30-second spot? Yet such determinations

would be required. We have said that a licensee may

D 22

reasonably determine that a position on a complex issue

should not be peddled like soap in a few seconds. The

dissent would presumably upset that ruling—to what pur-

pose? Beyond these questions is the more important dif-

ficulty that depriving the licensee of the discretion to

choose representative spokesmen on controversial public

issues * would lead us to a first come, first served plat-

form dominated by financial considerations—the very re-

sult the dissent seeks to avoid and something the Su-

preme Court has already stated to be undesirable in Red

Lion.

82. In short, we think the present system of regarding

licensees as trustees, McIntire v. William Penn Broad-

casting Co., 151 F. 2d 597 (C.A. 8, 1945), cert. den. 327

U.S. 779, with a duty to present contrasting viewpoints

through representative spokesmen, is constitutionally

sound and of greater public benefit than the concept of an

individual right of access, which as we have shown has

great drawbacks in the broadcast field.

Part II. The right of political parties to purchase

broadcast time to solicit funds ™*

33. In view of the positions now taken by the three

major networks (the only parties whose policies were

singled out by DNC were CBS and ABC), no extended

discussion is called for in this Part.

18 There could be a case where the licensee’s policy in this area

would be arbitrary (e.g., where he covers the issue, and in announce-

ments of a few seconds duration, and then refuses to let others

discuss the issue on this basis). No such case is or has been before

us. We have ruled on the assertions of DNC and BEM of general

entitlement to time to discuss public issues. Our holding is in that

context.

14 While the DNC petition is couched in terms of selling time to

“responsible entities” to solicit funds, the petition before us is

that of a political party and our discussion here is confined to

purchase of time by such parties for solicitation of funds.

_

D 23

34. NBC has stated that it has no policy against the

sale of time to a major national political party, to be

used for the solicitation of funds for the party, including

during non-campaign periods. CBS initially rejected the

DNC request since it occurred outside an election cam-

paign, but has now revised its policy to permit the pur-

chase during any period by a political party of spot an-

nouncements (not to exceed one minute in length) de-

signed to solicit funds for the party. ABC set forth its

policy that “absent special public interest considerations,

ABC will not sell time for comment on controversial is-

sues or for solicitation of funds” (p. 83, ABC of June 10,

1970, to William B. Ray), but then stated:

The continued strength and viability of our two

party system are of vital importance. ABC has em-

phasized in recent Congressional hearings the import-

ance of a wider base for political contributions—

small sums from millions of Americans rather than

large contributions from a few.

* * * *

Because the strength and viability of the major

political parties are vitally important, ABC would

be prepared, consistent with its other obligations, to

accept such orders for time from major political

parties as can be accommodated on a reasonable

basis. At the same time, we proposed to continue

our general policy against the sale of time for con-

troversial issue programs and announcements and

solicitations for funds, absent special public interest

considerations.

ABC then invited the Commission to address itself to its

proposed treatment of the case.

35. We concur in that treatment. We note that Con-

gress has singled out the presentation of the political

broadcast as a particularly important aspect of the

licensee’s public interest obligation. See Section 315 (a),

Farmer’s Union v. WDAY, 360 U.S. 525 (1958) (citing

D 24

F.C.C. cases); F.C.C. Memorandum on Second Sentence

of Section 315(a), Hearing before Subcommittee of In-

terstate and Foreign Commerce Committee, 88th Cong.,

1st Sess., on H.J. Res. 247, pp. 84-90. It also requires

no discussion to establish that political parties are an

integral part of our democratic process and that it serves

the public interest to promote the widest possible sup-

port by citizens of the party of their choice. See Voters

Time Rept., The Twentieth Century Fund (1969), pp.

45-57.

36. In a 1963 ruling, Letter to Lawrence M. C. Smith,

40 F.C.C. 549, we sought to encourage the presentation

of free broadcast time for this purpose stating:

First, we recognize that the announcements de-

scribed by you constitute an effort to achieve the

worthwhile and commendable goal of broadening

the base of political contributions. The importance

of this effort was recently emphasized when, on May

29, 1962, President Kennedy transmitted to the Pres-

ident of the Senate and the Speaker of the House of

Representatives legislation designed to carry out five

of the important recommendations contained in the

“Report on the President’s Commission on Campaign

Costs.” In his letter of transmittal, the President

stated, among other things:

“In these days when the public interest demands

basic decision so essential to our security and sur-

vival, public policy should enable presidential can-

didates to free themselves of dependence on large con-

tributions of those with special interest. Accord-

ingly, it is essential to broaden the base of financial

support for candidates and parties. To accomplish

this, improvement of public understanding of cam-

paign finance, coupled with a system of incentives for

solicitation and giving, is necessary.”

Furthermore, your proposal has an objective, in

common with the broad policy underlying the “fair-

ness doctrine”—the right of the public in a free so-

_

D 25

ciety to be fully informed as to controversial issues

of public importance, including those involving po-

litical parties and candidates. See paragraph 6 of

enclosed Editorializing Report.

Second, the question whether to present such an-

nouncements is one for the licensee, who is faced with

many competing requests to allocate time for public

service announcements. The Commission of course

expresses no opinion as to how that time should be

allocated. But the announcements in question should

not be rejected upon the sole ground that the licensee

would ‘have to be fair in their presentation. Law- -

rence M. C. Smith, 25 Pike and Fischer Radio Reg.

291, at 298 (1963).

37. Whether such time is afforded on a free basis is a

matter for the judgment of the licensee. The issue here

is whether the licensee may adopt or follow arbitrary

policies with respect to the sale of broadcast time to sig-

nificant political parties for the solicitation of funds.

Thus, the prior CBS policy of confining such sales of time

to election periods would appear arbitrary, since the need

for the widest possible financial support for political

parties is not confined to such periods; and indeed we note

that CBS offered no reason for such a distinction.

38. In this connection, we note that affording time for

such solicitation does not raise any offsetting considera-

tions, because of the combined force of a number of

factors:

(i) This area can be appropriately singled out, since

Congress has singled it out for special attention by broad-

cast licensees;

(ii) This would appear particularly to be an area

where the relatively short announcement, limited very

D 26

largely to fund solicitations, is both effective and ap-

propriate.*®

(iii) There is no problem under Cullman. For, in this

regard the principles set forth in Letter to Nicholas

Zapple, FCC 70-598 (1970), would govern.

CONCLUSION

39. In view of the foregoing, the request of the DNC

and ABC for a declaratory ruling IS GRANTED to the

extent reflected in Part II and in all other respects, IS

DENIED.

FEDERAL COMMUNICATIONS COMMISSION,

BEN F. WAPLE, Secretary.

CONCURRING STATEMENT OF COMMISSIONER

KENNETH A. Cox

I concur. The essence of the holding as to sale of time

for the discussion of controversial issues—as of the Red

Lion and Cullman cases—is that a broadcaster must de-

vote substantial time to the presentation of news and pub-

lic affairs programming dealing with the principal issues

of this area. He can sell time for this purpose—subject

to Cullman—but we will not require him to do so against

his wishes. Or he can—and this is generally to be pre-

ferred—give time for both sides. I assume here that the

networks have given, or will give, adequate time for dis-

cussion of the key partisan political issues of our time.

If not, then we must hold them to that obligation.

I therefore concur generally in this action, except for

the matter contained in Paragraph 27.

18 Of course, the licensee may exercise judgment as to how to pre-

sent these solicitations for funds, and can afford more extensive

programming time, if he so chooses. Indeed, we stress again the

considerable discretion of the licensee, consistent with the obligation

of the fairness doctrine, as to the various facets such as number,

placement, length, etc. Cf. Lawrence M. C. Smith, 40 FCC 549.

D 27

DISSENTING OPINION OF COMMISSIONER

NICHOLAS JOHNSON

[AN OPENING PARABLE]

[Once upon a time there was a nation as great in ideals

as industrialization. It had business everywhere—and

unsurpassed military might to protect it. And yet its

greatest strength was its foundation. For this nation

professed to be governed by the consent of its citizens.

To insure the successful functioning of its unusual gov-

ernment, free education, libraries, and full information

were provided in order that its 200 million governors,

through wide-open debate, might govern wisely. As the

years slipped by the people spent more and more time

in their air conditioned homes watching television, and

less and less time listening to speakers in the public parks

and reading handbills on the Streets. And yet the great

issues, and the need for informed governors, continued.

And thus it was that the great debate about the great

debate began.

[Everyone had his own theory how to get the demo-

cratic dialogue back to the people (who were all home

watching their television sets). Some advocated letters,

petitions, press conferences, and picketing, but they didn’t

seem to be successful. Attention shifted to those who

advocated bombing, burning, shooting and looting, because

before and after the showing of such activities it was

usually possible to present a short message on television

(however distorted) about the merits of the issue at hand.

Then a third group came along. It said, “Let us simply

go to the broadcasters peacefully, and ask them for the

time to present our concerns—and even pay them.” They

were jeered by the crowd, but not deterred. The broad-

casters politely explained that there was no longer any

room at their inn for the discussion of public issues—like

war, and life, and politics—because the time all had to be

D 28

used for programs and announcements necessary to the

very difficult but essential task of manipulating consumers

to buy useless and harmful products. And yet these pa-

tient and patriotic students, businessmen, and Senators

still did not give up. They continued to preach the doc-

trine of “working within the system.” “The government,”

they said, “will treat us fairly. There is reason and

justice in our land. Surely a democratic people need not

be violent to be heard.” And so it was that they came to

the FCC... .]

The Democratic National Committee (DNC) has asked

the Commission for a declaratory ruling requiring broad-

casters to supply two types of “access” to their radio

and television facilities: first, the right to purchase, at

current commercial rates, short “spot announcements”

to solicit funds for political purposes; second, the right to

purchase longer segments of airtime for presentation of

political programming on important national issues. The

majority, so far as I can determine, has equivocated on

the first request, and denied the second. I dissent.

I

We should start with a few fundamentals. The great

concept of our Constitution, embodied in the First Amend-

ment, was that our democratic government would endure

only so long as its citizens and their elected representa-

tives had the leisure to think, the right to speak, and

the freedom to criticize their government. As Supreme

Court Justices Holmes and Brandeis understood, “the

best test of truth is the power of the thought to get itself

accepted in the competition of the market,” and that in a

government of free men, “the deliberative forces should

prevail over the arbitrary.” See Abrams v. United States,

250 U.S. 616 (1919) (Holmes, J., dissenting) ; Whitney

v. California, 274 U.S. 357 (1927) (Brandeis, J., con-

curring).

D 29

The issues we grapple with today, therefore, pose a

crucial question. How can we create a free and open

“marketplace of ideas” over the radio and television me-

dium in which citizens, and their elected representatives,

can discuss the great issues that weigh upon our nation?

The second fundamental is equally important. For

speech to be free, there must be both a forum for com-

munication—whether it be a public park, school, town

hall meeting, soap box, leaflet, newspaper, magazine, or

radio or television frequency—as well as procedural rules

to keep order, to make it possible for all (or most) to

speak in turn, and be heard, in that forum. Perhaps

the greatest legal distinction to be drawn in political and

free speech theory is that between restrictions on the

content of speech (which the First Amendment flatly pro-

hibits), and regulations for the manner of speech (which

the First Amendment not only permits but requires). As

this nation’s concept of speech derives principally from

the model of the town meeting, I quote Professor Alex-

ander Meiklejohn, one of the greatest champions of First

Amendment freedoms, as he describes the town meeting:

In the town meeting the people of a community

assemble to discuss and to act upon matters of pub-

lic interest—roads, schools, poor houses, health, ex-

ternal defense, and the like . . . . The basic principle

is that the freedom of speech shall be unabridged.

And yet the meeting cannot even be opened unless,

by common consent, speech is abridged. A chairman

or moderator is, or has been, chosen. He “calls the

meeting to order.” And the hush which follows that

call is a clear indication that restrictions upon speech

have been set up. . . . [N]o one shall speak unless

“recognized by the chair.” Also, debators must con-

fine their remarks to “the question before the house.”

. .. The town meeting, as it seeks for freedom of

public discussion, would be wholly ineffectual unless

speech were thus abridged... .

D 30

Meiklejohn, The First Amendment Is An Absolute, 1961

Supreme Court Review 245.

Although the First Amendment would clearly ban gov-

ernmental censorship of speech content, government must

be concerned about the procedural rules that control the

public forums for discussion. If someone—a moderator,

or radio-television licensee—applies rules that give one

speaker, or viewpoint, less time (or none at all) to present

a position, then a censorship exists as invidious as out-

right thought control. There is little doubt in my mind

that for any given forum of speech the First Amendment

demands rules permitting as many to speak and be

heard as possible. And if this Commission does not enact

them, then the courts must require them.

The anology to broadcasting should be clear. Yet, we

have permitted a system of broadcasting to develop in

this country in which private licensees serve, not only as

“moderators” for the electronic forums of communication,

but as all the “speakers” as well. As the majority states,

our limited frequencies require someone to serve as “pub-

lic trustees.” No one would deny this need for a “trustee”

system. But that is not the issue. The issue is whether

that “trustee” must control all the available time, or

whether policy and the First Amendment require him,

in a manner consistent with his other duties, to turn over

reasonable portions of that time directly to the people.

In many ways, broadcasters have resolved this issue

themselves. For they have created a system in which im-

mediate access is granted to one, privileged class of ap-

plicants: the commercial peddler of goods and services.

As the system now operates, any person wishing to sell

products—toothpaste or “feminine deodorant spray,” for

example—has direct, personal and instant access to tele

vision. He can present his message, in the form he wishes

—not in terms of “issues” (the general benefits of tooth-

paste or deodorant), but in terms of individual products.

D 31

He is not forced to rely upon a “trustee” to argue the

cause of his product for him under some principle of the

fairness doctrine—an occasional mention on the evening

news, or a Sunday afternoon talk show. He does it per-

sonally and directly.

No, our Rules of Order for radio and television are

fantastically skewed. We have an individual right of

access, all right, but only for hucksters of industrial gar-

bage. Anyone wishing to discuss war, peace, mental

health, or the suffering of the poor, must seek out a cor-

porate “trustee,” appointed by the government, to speak

for him. But the corporations that have largely contrib-

uted to these social ills can defend their wares directly.

With the help of Congress and the FCC, the broadcast-

ing industry in this country has built perhaps the most

beautiful, efficient, and effective “marketplace of ideas”

ever conceived and executed. The industry finds it most

profitable, however, to use that marketplace only for the

sale of products—not the robust, wide open debate of a

free society. And the FCC finds this in “the public in-

terest”!

II

The majority has addressed the first issue—the right

to solicit funds via short announcements—in ambiguous

fashion. Stating that the three networks have grudgingly

announced their willingness to accept such announce-

ments, the majority responds: “We concur in that treat-

ment.” (Par. 30.) But how does this “concurrence” rule

on the request before us—namely, that broadcasters be

required to adopt such policies? The majority hints that

a denial of such time to political parties outside normal

election periods would appear “arbitrary,” but does not

explain why, nor detail the consequences of such arbitrari-

ness. Because, however, the majority states that solicita-

tion announcements are “appropriate” in this area, I

conclude that they make the networks’ recently adopted

policies binding on them.

D 32

In a companion case to this decision, Business E'xecu-

tives Move for Vietnam Peace (BEM), FCC 70-860, Aug.

6, 1970, I have stated in detail my position that a broad-

caster cannot accept commercial advertisements, yet re-

ject advertisements which are political in nature. I be-

lieve the principles there stated are directly applicable

to advertisements soliciting funds for political parties. I

will not repeat them here, but merely incorporate them

by reference. For reasons detailed in that opinion, I

concur in the majority’s decision to require licensees to

accept advertisements by political parties soliciting funds.

I dissent, however, to the majority’s position that

broadcasters should not be required to offer time for

short announcements to all persons for any purpose. As

I have argued in my Business Executives opinion, once a

licensee opens his forum to the presentation of commer-

cial views, he cannot then close it in a discriminatory

fashion—accepting some commercial views and political

solicitations, but rejecting all others. I point out only

that the Commission’s partial waiver for the DNC to

permit it to purchase fund-raising spot announcements

only increases the arbitrariness and discrimination in-

volved in denials of access to political parties for short

announcements on current issues, or announcements by

groups or individuals either soliciting funds or stating

positions on national problems.

In Wirta v. Alameda-Contra Costa Transit District,

434 P. 2d 982 (Cal. 1967), for example, a public transit

company sold advertising space in its buses for commer-

cial products, but refused to accept an advertisement by

Women for Peace, which simply stated:

“Mankind must put an end to war, or War will

put an end to mankind.”—President John F. Ken-

nedy...

Stating that the political “advertisement” was clearly

hie First Amendment, the court flatly or-

D 33

dered the company to accept the advertisements for dis-

play.

[A]dvertising is an acceptable and effective means

of communication. A regulation which permits those

who offer goods and services for sale . . . access to

such forum, while denying it to those who desire to

express other ideas and beliefs, protected by the

First Amendment, cannot be upheld.

Wirta, supra, at 990. The “vice” of censorship lay in

“choosing between classes of ideas,” accepting commer-

cial ones and banning all others. Every other court faced

with the same issue has followed this position. See, e.g.,

Hillside Community Church, Inc. v. City of Tacoma, 455

P. 2d 350 (Wash. 1969) ; Zucker v. Panitz, 299 F. Supp.,

102 (S.D.N.Y. 1969) ; Kissinger v. New York City Trans-

it Authority, 274 F. Supp. 328 (S.D.N.Y. 1967). The

application of this arm of the law to broadcasting is rela-

tively new and as yet undeveloped and unapplied. But

see United Broadcasting Co. (WHKC), 10 F.C.C. 515

(1945). I have attempted to show that these cases clear-

ly apply to broadcasting in my Business Executives opin-

ion.

The lesson of these cases is clear. The Government

could not, for example, allow persons selling products to

speak freely in public parks, but bar those opposing the

war or require them to “speak” through an interpreter

or “trustee” appointed by the Government. No court in

the land would tolerate such blatant discrimination. Yet

the majority permits this sort of discrimination to occur

every day in our nation’s electronic “public parks.” Al-

though we do not have the question before us, a broad-

caster might not have to open his forum to advertising

at all. But once he does, he must open it in an even-

handed manner—absent some compelling showing of detri-

ment or disruption to his normal programming services.

No such evidence on this issue has been supplied to us.

D 34

I believe this Commission (perhaps for a two-year trial

period) should require broadcasters to accept, up to rec-

ognized limits on numbers of commercials, all advertise-

ments, whether commercial or political, from any person,

for broadcast at rates determined by the licensee, on a

first-come, first-served basis. If ghetto residents of our

major cities wish to purchase announcements decrying

the rat-infested, disease-ridden slums in which they are

forced to live, they must be given their say. If the Daugh-

ters of the American Revolution wish to announce their

support for the Vietnam War, they must be given their

say. In short, I would open the broadcast spectrum to

short announcements from all comers on a first-come,

first-served basis, There will be time later to assess and

evaluate—to consider, for example, whether the views

of the rich predominate—at least, to a greater extent

than they now predominate in mass media advertising.

I would not expect any fairness doctrine problems. Few

licensees would argue that they were unwilling to accept

an advertisement because it might force them to present

all views on an issue of controversy and public impor-

tance. This obligation is already incumbent upon them.

And should the fairness doctrine prove unworkable in

this field, it could be suspended for this type of program-

ming.

III

The Commission also denies the DNC the right to pur-

chase, at the going rates, half-hour or full-hour program-

ming to discuss issues of national concern. I disagree, If

broadcasters are to permit a General Motors or a Ford

Motor Company, in effect, to purchase a full hour of “I

Love Lucy” as a vehicle upon which to display their com-

mercials, then I do not see how, consistent with the prin-

ciples enunciated in Wirta and other cases, the broad-

casters can refuse to permit the leading representatives

of our legislative branch of government to purchase the

equivalent hour to display their ideologies and concerns.

—

D 35

I would require licensees to accept programming of a

political nature, if offered, in an amount up to 5% of

their prime time evening schedule on a first-come, first-

served basis, Assuming -four hours of prime time every

evening (from 7:00 p.m. to 11:00 p.m.), and calculating

30 days per. month, that would release six hours per

month to “pure access” by politicians and citizens groups

alike. The individual licensee would, of course, still re-

tain the right to reject programming for inadequate tech-

nical and production quality, or violation of federal law

(lotteries, obscenity, ete.). But I would assume that pro-

gramming purchased by the national politica] parties

would, almost per se, meet any pre-established quality

standards. Licensee profits would remain at their present

high level. And there will be time later to assess this

scheme and determine the extent to which fairness doc-

trine. obligations apply. The fairness doctrine could be

suspended in this limited area, on the assumption that

persons wishing to respond could purchase the necessary

reply time. Obviously this 5% figure is only an initial,

approximate determination, and obviously any other rea-

sonable percentage determined by the licensee would also

be approximate. But the point is that licensees could

not reject all programming.

* The majority essentially raises several objections to

such a procedure. First, they argue that this would per-

mit those with “strong financial resources” to pre-empt

time and distort the presentation of issues, And they

maintain that the views of the wealthy would dictate

the agenda of national debate. I disagree. The short

answer is that the wealthy already set the agenda for

national debate, and a partial “access-for-purchase” pro-

cedure would only open a closed system to partial dissent.

A longer answer, however, is simply that I have more

faith in the theoretical “marketplace of ideas” than does

the majority. I am not aware that opening the pages of

hewspapers or magazines, or the wal] Space of buses,

train stations or subway platforms, have resulted in a

D 36

preponderance of “wealthy” views. And I do know that

the “Political advertising” that appears in daily news-

papers—urging, for example, citizens to write the Presi-

dent in support or opposition of the Vietnam war—is

more stimulating and thought-provoking than those of

department stores and food chains. All in all, I do not

see any imbalance in that system of “print” access. Why

‘should we expect it in radio and television?

But more importantly the dissemination even of “false”

or one-sided political ideas often serves a socially useful

purpose. False commercial ideas (such as the notion that

modern cars are “safe,” or do not pollute the air) are

unlikely to generate opposing claims; at best, they mere-

ly goad competing manufacturers into more and more

extravagant claims. On the other hand, expressions of

political opinion in this country usually lead to argument

and debate, not silent acquiescence; to vigorus opposition,

not passive acceptance. And debate and dissent is always

healthy. John Stuart Mill saw this over 100 years ago,

and I do not believe the passing century has proven him

wrong:

The peculiar evil of silencing the expression of

opinion is that it is robbing the human race; pos-

terity as well as the existing generation; those who

dissent from the opinion still more than those who

hold it, If the opinion is right, they are deprived of

the opportunity of exchanging error for truth; if

wrong, they lose what is almost as great a benefit,

the clearer perception and livelier impression of truth,

produced by its collision with error.

J. S. Mill, On Liberty, quoted in Buckley v. Meng, 230

N.Y.S. 2d 924, 982 (Sup. Ct. 1962). Given a system in

which the small citizen and the man of moderate means

are totally cut out from a system of communication, there-

fore, I believe a partial access system might move a small

way toward righting the present imbalance.

D 37

The majority’s second justification for its position is

that we have a limited number of frequencies, and that

some “trustee” must necessarily exercise control over

broadcasting time. Any other System would result in

chaos, Again, this begs the question. Merely because a

“trustee” or “gatekeeper” must control some of the time,

I see no compelling reason why he must control all of it.

Broadcasters have essentially abdicated this “trustee” au-

thority to commercial advertisers, gobbling up sponsors

as rapidly as they approach, and limiting themselves only

by the commercial maximums suggested for radio and

television. They have also, on occasion, sold entire hours

to sponsors such as Xerox or National Geographic to

present their own programming. The question before us,

therefore, is whether the present system of broadcasting

could function with a partial system of access, leaving

the vast bulk of programming still under the control of

the networks and individual licensees. Nothing the ma-

jority has said convinces me that this is impossible.

The third reason given by the majority is that Section

38(h) of the 1984 Communications Act prevents licensees

from being treated as a “common carrier.” There are

many defects in this position, some of which I have dealt

with in my dissenting opinion in Business Executives,

FCC 70-860, Aug. 6, 1970. Some are as follows.

First, the legislative history of this provision suggests

that the drafters of the 1934 Act were concerned only

that Title II of the Act, “Common Carriers,” and its

rather complicated system of regulation, not be imposed

on radio. No one would argue that a partial access sys-

tem would have this result.

Second, Congress wrote into the 1934 Act the concept

that broadcast licensees must serve the “public interest,

convenience, and necessity.” And it goes without Saying

that the basic principles of the First Amendment are also

incorporated implicitly into the Act. We do not have to

declare unconstitutional Section 3(h) of the Act to say

—x

D 38

that broadcasters must treat persons wishing to do busi-

ness with it equally. We have ruled in our Letter to

Nicholas Zapple, FCC 70-598 (1970), for example, that

even apart from Section 315(a) considerations, there

may be only one appropriate person or spokesman that can

satisfy the fairness doctrine obligation imposed upon

broadcasters in certain situations. Does this violate Sec-

tion 3(h) of the Act, by taking from the licensee choice

over the person that uses his facilities? Of course not.

A limited system of access for purchase is perfectly con-

sistent with Section 3(h) of the Act, the “public inter-

est,” and the First Amendment. Indeed, the First Amend-

ment may require such a system or some reasonable

facsimile.

Third, a reasonable system of access does not make

broadcasters into common carriers. A doctrine prevent-

ing broadcasters from rejecting all persons wishing to

submit political advertising or other programming does

not force licensees to accept everyone. Obviously broad-

easters can establish reasonable limitations on the amount

of time he will offer other persons. See United Broad-

casting Co. (WHKC), 10 F.C.C. 515 (1945). The First

Amendment does not establish any particular proportion

on percentage figure; it does require, however, that

broadcasters devote some “reasonable” portion of their

time to “access” programming.

IV

The matters before us go far beyond freedom of speech.

For

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