Petition for Writ of Certiorari — Columbia Broadcasting System, Inc. v. Democratic National Committee

Supreme Court brief1973

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What actually matters in this document.

Text

- Opinions below

= Jurisdiction. ---------------------------------

& Question presented -_-_-_-_--.--..----------------

- Constitutional and statutory provisions involved _-

& Conclusion.-_-_-------.------------------------

e Appendix A.........-_.--.-------------------

| Appendix B

F Appendix C

+ Appendix D

. Appendix E

: CITATIONS

- Cases:

American Lines v. L. & N. R. Co., 392 US.

Cox v. Louisiana, 379 U.S. 5386_______-_____-

Federal Power Commission v. Idaho Power Co.,

Fowler v. Rhode Island, 345 U.S. 67_______-_-

David Green v. Federal Communications Com-

4 mission, 447 F. 2d 323__._______________-

L? ~—- Hillside Community Church Inc. v. City of

3 Tacoma, 455 P. 2d 350

Kissinger v. New York City Transit Authority,

274 F. Supp. 4388_____-------------_--_-

Lee v. Board of Regents of State Colleges, 306

F. Supp. 1097, affirmed, 441 F. 2d 1257____

Massachusetts Universalist Convention v.

Hildreth & Rogers Co., 183 F. 2d 497

(1)

452-787—71——-1

Cases—Continued

McIntire v. Wm. Penn Broadcasting Co.,

151 F. 2d 597, certiorari denied, 327 US. page

FR... cnincnavenadeseedeen tatiewins 14

New York Times Co. v. Sullivan, 376 US

ORE cscs pon beeen naga eebaweapene 7

Niemotko v. Maryland, 340 U.S. 268-------- 17

Office of Communications of the U nited Church

of Christ v. Federal Communications Com- .

mission, 359 F. 2d 994... ---------------- 11

_ Red Lion Broadcasting Co., Inc. v. Federal

Communications Commission, 395 U.S. 367 _- 6,

9, 10, 11, 12

~~ Regents of New Mexico v. Albuquerque Broad-

casting Co., 158 F. 2d 900_--------------- 14

United States v. Saskatchewan Minerals, 385

SS 2 aa. een 16

Wirta v. Alameda-Contra Costa Transit District,

64 Cal. Reptr. 430, 434 P. 2d 982_-------- 14

Zucker v. Panitz. 299 F. Supp. 102_--------- 13-14

Administrative decisions:

Cullman Broadcasting Co., Inc., 40 F.C.C. |

e.g... can eeanebeweenereiy 7

Report on Editorializing by Broadcast Licensees,

Tete o> ae a 11,14

Letter to Nicholas Zapple, 23 F.C.C. 2d 707--- 7

‘ United Broadcasting Co., 10 F.C.C. 515_------ 14

Statutes:

United States Constitution, Amendment I. -- 2,

5, 6, 7, 8, 9, 10, 11, 12, 18

Communications Act of 1934, 48 Stat. 1064,

as amended, 47 U.S.C. 151, et seq.:

Matin, LEB | oon scnneensanedee= 3,6, 13,17

Section 315(a), ..----------- 3,6, 10, 11, 13,17

et TN utcnbuk cs ckubsepnasae 17

Section S08(a) =o 5c oc cccsxencwucee 7

Miscellaneous:

ee ae ——— .

III

Notice of Inquiry in Dkt. No.

WE non ceuctc.... >

19260, 30 F.C.C.

TST QS ey

Gn the Supreme Gourt of the Bnited States

OctoBER TERM, 1971

No.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED

STATES OF AMERICA, PETITIONERS

Vv.

BUusINEss Executives’ Move For VietNaM PEACE

No.

FeperRAL CoMMUNICATIONS CoMMISSION AND UNITED

STATES OF AMERICA, PETITIONERS

Vv.

Democratic NaTIONAL COMMITTEE

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

The Solicitor General, on behalf of the United

States and the Federal Communications Commission,

prays that a writ of certiorari issue to review the

final judgment of the United States Court of Appeals

for the District of Columbia Circuit entered in these

cases on August 3, 1971.

(1)

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

pp. la-47a) is not yet officially reported. The opinions

of the Federal Communications Commission are re-

ported at 25 F.C.C. 2d 242 and 25 F.C.C. 2d 216

(Apps. B and C, infra, pp. 48a-90a and 91a-154a).

JURISDICTION

The judgment of the court of appeals was entered

on August 3, 1971, and reissued on October 29, 1971

(App. D, infra, pp. 155a-156a). A timely petition

for rehearing and suggestion for rehearing en banc,

was denied by the court on October 4, 1971 (App. E,

infra, pp. 157a-158a). The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether, under the powers granted to it by the

Federal Communications Act, and in light of the in-

herent limitations on the broadcast spectrum, the Fed-

eral Communications Commission, which under its

“Fairness Doctrine’ requires broadcast licensees to

originate programs involving controversial issues of

public importance, must, because of the First Amend-

ment, also require that the licensees sell time to

individuals and groups for the advertising of their par-

ticular views.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the Constitution provides

in relevant part:

Congress shall make no law * * * abridging

the freedom of speech * * *.

“ 3

Section 3(h) of the Communications Act of 1934, 48

Stat. 1064, et seq., as amended, 47 U.S.C. 153(h), pro-

vides:

“Common carrier’ or “carrier”? means any

person engaged as a common carrier for hire,

in interstate or foreign communication by wire

or radio or in interstate or foreign radio trans-

mission of energy, except where reference is

made to common carriers not subject to this

chapter; but a person engaged in radio broad-

casting shall not, insofar as such person is so

engaged, be deemed a common carrier.

Section 315(a) of the Communications Act of 1934,

48 Stat. 1088, as amended, 73 Stat. 597, 47 U.S.C.

315(a), provides:

If any licensee shall permit any person who

is a legally qualified candidate for any public

office to use a broadcasting station, he shall af-

ford equal opportunities to all other such candi-

dates for that office in the use of such broadeast-

ing station: Provided, That such licensee shall

have no power of censorship over the material

broadcast under the provisions of this section.

No obligation is imposed upon any licensee to

allow the use of its station by any such eandi-

date. Appearance by a legally qualified candi-

date on any—

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if

the appearance of the candidate is inci-

dental to the presentation of the subject

or subjects covered by the news docu-

mentary), or

(4) on-the-spot coverage of bona fide

news events (including but not limited to

4 ip.

political conventions and activities inci-

dental thereto),

shall not be deemed to be use of a broadcasting

station within the meaning of this subsection.

Nothing in the foregoing sentence shall be con-

strued as relieving broadcasters, in connection

with the presentation of newscasts, news inter-

views, news documentaries, and on-the-spot cov-

erage of news events, from the obligation im-

posed upon them under this chapter to operate

in the public interest and to afford reason-

able opportunity for the discussion of con-

flicting views on issues of public importance.

STATEMENT

These cases arise out of two orders of the Federal

Communications Commission, concerning claims that

radio and television broadcasters cannot refuse to sell

any broadcast time for the discussion of controversial

issues. In each instance the complainant sought time

to present its own views, without regard to whether

the station licensee had otherwise fulfilled its affirma-

tive and continuing obligation under the Commission’s

fairness doctrine to inform the public on questions of

public importance by presenting representative and

contrasting views.

In Business Executives’ Move for Vietnam Peace

(BEM), a national organization sought to purchase

time for one-minute anti-Vietnam War announcements

on radio station WTOP, Washington, D.C. The sta-

tion declined to sell the time on the ground that it was

against its policy to sell spot time for the discussion of

controversial issues. It explained that such subjects

“require a more in-depth analysis than can be provided

in a 10, 20, 30 or 60 second announcement” (App. C, p.

Oe ee ee, eS.

r 5

92a). Moreover, it claimed before the Commission that

it had carried, through a variety of spokesmen in dif-

ferent formats, the views of both proponents and op-

ponents of the war, including the views embodied in

the proposed BEM announcements (App. C, pp. 94a-

95a).

In Democratic National Committee (DNC), that or-

ganization sought a declaratory ruling that “Tal

broadcaster may not, as a general policy, refuse to sell

time to responsible entities, such as DN C, for the

solicitation of funds and for comment on public issues”

(App. B, p. 48a). DNC did not request relief against

any particular station.

The Commission ruled on the two matters in related

opinions issued on the same day. With respect to

WTOP’s claim that it had given substantial coverage

to various opinions’on the war, the Commission noted

that this had been challenged by “no more than a gen-

eral allegation” to the contrary, and held that this was

an insufficient basis upon which to require WTOP to

undertake a burdensome demonstration of its compli-

ance with the fairness doctrine (App. C, pp. 97a-99a).

It rejected the two complainants’ common contention

that, for constitutional and other reasons, time must

be sold to groups seeking to air their particular views

about controversial public issues.

The Commission held that such a requirement would

be inconsistent with its fairness doctrine and is not

mandated by the First Amendment or by the system

of private broadcasting established by Congress.’ It

*In Business Executives’ Move for Vietnam Peace, the Com-

mission relied primarily on its basic and more extensive analysis

in Democratic National Committee (App. C, pp. 101a-102a).

pointed out that Congress expressly chose not to make

a broadcaster a common carrier (47 U.S.C. 153(h))

and had instead approved (47 U.S.C. 315(a)) the

Commission’s policy known as the fairness doctrine,

under which licensees are regarded as trustees of the

public interest charged with an affirmative respon-

sibility of informing the public about representative

community views on issues of great public importance

(App. B, pp. 62a-65a). Emphasizing the Court’s en-

dorsement of this doctrine in Red Lion Broadcasting

Co., Inc. v. Federal Communications Commission, 395

U.S. 367, the Commission stated that this responsibility

necessarily vests in each licensee a broad discretion

to determine the issues to be discussed, the spokesmen

that will speak, and the format to be used (App. B,

pp. 58a-65a).

The Commission concluded that the paramount

First Amendment right of the public to be in-

formed, recognized by the fairness doctrine and in

Red Lion (395 U.S. at 390), is best served by con-

tinued reliance on licensee discretion rather than by con-

ferring wpon members of the public qualified rights

of access t a communications medium which inherently

is not available to all (App. B, pp. 64a-72a). In the

Commission’s view, the alternative would pose difficult

problems for licensees in maintaining a balanced fa-

eility for the discussion of public issues, would give

persons with substantial financial resources undue

influence in the determination of the use of that

facility, and would endanger the principle that free

time must be provided, if necessary, to redress an

P 7

imbalance in coverage ” (App. B, pp. 65a-67a). The

Commission cautioned broadcast licensees, however,

that a “policy of excluding partisan voices and always

itself presenting views in a bland, inoffensive manner

would run counter to the ‘profound national commit-

ment that debate on public issues should be unin-

hibited, robust, and wide-open,’”’ citing, inter alia,

New York Times Co. v. Sullivan, 376 U.S. 254, 270

(App. B, p. 61a).’

Upon petitions for review filed by BEM and DNC

pursuant to Section 402(a) of the Communications

Act, 47 U.S.C. 402(a), the court of appeals, with

Judge McGowan dissenting, reversed. The court held

that ‘a flat ban [by licensed broadcasters] on paid

public issue announcements is in violation of the First

Amendment, at least when other sorts of paid an-

nouncements are accepted” (App. A, p. 3a). Although

recognizing that the physical limitations of broadcast

time necessarily restrict access to the airwaves, the

court concluded that within these limitations there is

nevertheless ‘a reasonably regulated, ‘abridgeable’

right to speak’”’ (App. A, p. 22a). This abridgeable

interest, in the court’s view, derives from the publie’s

right to receive ideas and information (App. A, p.

20a), the public’s “First Amendment interest in the

*See Cullman Broadcasting Co., Inc., 40 F.C.C. 576.

*The Commission also ruled that time should be made avail-

able for sale to significant political parties to solicit funds, in

view of the importance of viable parties and the fact that the

Cullman principle, supra, n. 2, is not applicable to the political

party areas (App. B, p- 72a-T5a). See Letter to Nicholas

Zapple, 23 F.C.C. 2d 707.

>... POLE EGE LON GLE POLI POEL LYE RCSL, SERIA A NE IN CR gene 9a ig ty SEO RS

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

debate aired on the broadcast media” (App. A, p.

21a), and “the interest of individuals and groups in

effective self-expression’ (App. A, p. 22a). Since edi-

torial advertising involves some initiation and control

of the broadcast by the advertiser, it directly serves

the First Amendment interest in wide-open debate and

self-expression; by contrast, the court deemed exclu-

sive control by licensees over the initiation and edit-

ing of broadcasts on controversial issues to be ‘‘in-

imical to the First Amendment” (App. A, p. 24a).

For this reason, the Commission’s reliance on the duty

of licensees to originate such broadcasts, subject to

the fairness doctrine, was held to be constitutionally

insufficient (App. A, p. 24a, n. 34). Moreover, the

court held that if commercial advertising is sold at all, a

total ban against editorial advertising by broadcasters

violates the First Amendment because such a ban dis-

criminates against controversial speech in favor of

commercial speech (App. A, 29a-36a).

The court found unpersuasive the fears of the Com-

mission and the broadcasters that only those with the

greatest wealth would be able to purchase time and

thereby enjoy the ‘‘abridgeable” right of access; that

licensees might lose control of their programming;

and that the fairness doctrine’s requirement that con-

trasting views to editorial advertising be presented free

of charge (if necessary) might seriously impair the

financial base of broadcasting. These arguments, the

court stated, misconceived the narrowness of the

issue: the permissibility-of a total ban by broad-

ocean

casters on editorial advertising. The court ordered the

Commission to develop reasonable guidelines gov-

erning acceptance of editorial advertisements by

broadcasters (App. A, pp. 36a-43a) and remanded

the cases to the Commission for this purpose (App.

A, p. 44a).

Judge McGowan, dissenting, stated that the respon-

sibilities of broadcast licensees to present contro-

versial views on issues of public importance, subject

to the fairness doctrine, satisfied the requirements of

the First Amendment. He noted that “This is the sys-

tem which Congress has, wisely or not, provided as

the alternative to public ownership and operation of

radio and television communications facilities, * * *

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 * * *” (App. A, 46a). He concluded that

“within the context of a regulatory scheme which has

made provision for the airing of controversial issues of

public importance,” the First Amendment permits,

but does not require, licensees to accept paid editorial

advertising. (App. A, pp. 46a—47a.)

REASONS FOR GRANTING THE WRIT

Because the broadcast spectrum is limited, its use

must be regulated to accommodate the interests of all,

lest in the “cacaphony of competing voices” none will]

be clearly heard. Red Lion Broadcasting Co. v. Federal

Communications Commission, 395 U.S. 367, 376. No

individual, therefore, and no group has “an unabridge-

able First Amendment right to broadeast comparable

—_—— IE PEON SE IGE TE SLOT IA TENE RAE, re ater me nar ease Se wenn cetipmin EOE hate

to the right of every individual to speak, write or pub-

lish.’’ Id. at 388. “It is the right of the viewers and lis-

teners * * * which is paramount.”’ Id. at 390. How this ob-

jective is to be achieved involves choices among vari-

ous means of accommodating the public’s interest in

maintaining freedom of speech with the inherent phys-

ical limitations on access to the airways. In the public

interest standards of the Communications Act of 1934,

and in the 1959 amendment to Section 315 of that Act,

Congress charged the Federal Communications Com-

mission with the primary responsibility to make these

choices. The decision of the court of appeals in this

case substantially encroaches upon that responsibility.

It in effect transfers the making of the basic policy

judgment from the Commission to the courts, and, in

so doing, sets a new and significant course for broad-

casting. The importance of this case thus lies not only in

the immediate consequences of the court’s decision for

radio and television broadcasting, but also in the impli-

cations of that decision for the proper role of the Com-

mission and the courts in the regulatory system

Congress has legislated.

Over the years, as radio and television have assumed

greater importance in our society, the Commission’s

responsibilities have concomitantly increased and a

regulatory system has evolved. The Commission, with

the subsequent approval of both Congress (47 U.S.C.

315(a)) and this Court (Red Lion, supra, at 386-401),

has concluded that under the Communications Act

broadcast licensees must conduct themselves as public

trustees.‘ They have the duty both to give adequate

coverage to public issues and to assure that that cov-

erage fairly and accurately reflects opposing views.

See, ¢.g., Report on Editorializing by Broadcast Li-

censees, 13 F'.C.C, 1246; Fairness Primer, 29 Fed. Reg.

10415; Network Programming Inquiry, 25 Fed, Reg.

7291; Primer on Ascertainment of Community Prob-

lems by Broadcast Applicants, 36 Fed. Reg. 4092.

These duties are grounded on the licensees’ statutory

obligation “to operate in the public interest and to

afford reasonable opportunity for the discussion of

conflicting views on issues of public importance,’’ 47

U.S.C. 315(a).

In this limited respect, the freedom of broadcast

journalism is, because of the inherent physical limita-

tions of the broadcast spectrum, subordinated to the

public’s interest in hearing diverse views. See Red

Lion, supra. Moreover, the Commission has made clear

that “[a] licensee policy of excluding partisan voices

and always itself presenting views in a bland, inoffen-

sive manner would run counter to the ‘profound na-

tional commitment that debate on public issues should

be uninhibited, robust, and wide-open’”’ (App. B,

p. 61a). The consequence of failure to meet this obli-

gation is, as Judge McGowan recognized, loss of the

right to broadcast (App. A, p. 46a).

The court of appeals, however, held that the First

Amendment demands more. In the court’s view, there

is a limited First Amendment right of access. But

*See also Office of Communications of the United Church of

Christ vy. United States, 359 F. 2d 994 (C.A.D.C.).

the limited right is itself abridgeable ; not all members

of the public can exercise it and, indeed, the court

ruled that the plaintiffs in these cases are not neces-

sarily entitled to present their views on the air (App. |

A, p. 2a). Instead, the court ordered the Commission

to adopt regulations that would govern the selling of

time for editorial advertising in light of the court’s

holding that licensees must make some time available

for such advertising. The court thus recognized that in

broadcasting the available time must be apportioned

in some manner among those who want to present

views of public importance.

Given the common First Amendment objective of

both the court and the Commission, the court’s holding

is, in substance, simply a disagreement with the Com-

mission about how best to make that apportionment.

For the Commission’s concern has always been with

ensuring the “right of the public to receive suitable

access to social, political, esthetic, moral and other ideas

and experiences,’’ Red Lion, supra, 395 U.S. at 390 (em-

phasis added). But this collective right of the public de-

pends on what constitutes “suitable access” and that is

a practical question, peculiarly suited to administra-

tive determination, which Congress has left primarily

with the Commission. Indeed, by basing its disagree-

‘ment with the Commission on constitutional grounds,

the court has not only significantly restricted the

ability of the Commission to regulate this important

medium of communication in accordance with the

agency’s informed views of how the public interest

will best be served, but has in effect also held that

Congress itself is without power to change the court’s

result. :

Congress has chosen to promote broadcasting within

the structure of the private enterprise system and, in

light of the inherent limitations on access to broad-

casting, has expressly declared in Section 3(h) of the

Act that licensees are not common carriers (47 U.S.C.

153(h) ). Indeed, it has also declared that “no obligation

is imposed upon any licensee to allow the use of its

station by any [ political] candidate.” 47 U.S.C. 315(a).

Within this statutory structure, careful decisions must

be made in regulating the use of broadcast time. In

Red Lion, the licensees argued that the Commission

had gone too far in protecting the rights of listeners

and had thereby violated the licensees’ First Amend-

ment rights; in this case, groups wishing to express

their views on the air claim the Commission has not

gone far enough in securing their right to speak and the

publie’s interest in hearing speech. Both cases required

the Commission to render a determination in light not

only of the regulatory system that Congress had legis-

lated and that, over the years, the Commission had de-

veloped, but also of the various interests that must be

accommodated within the existing structure of broad-

casting. Here the Commission again carefully articu-

lated the practical and legal basis for its policy and con-

cluded that the public’s interests in broadcasting are best

served by vesting the licensees with broad discre-

tion to discharge their important responsibility of

presenting the public with diverse views (App. B, pp.

dTa—72a, App. ©, pp. 100a—103a).° The Commission’s de-

_ * Because of this duty, the cases involving access to a regu-

lated forum relied upon by the court of appeals are inapposite.

Lee v. Board of Regents of State Colleges, 306 F. Supp. 1097

(W.D. Wis.), affirmed, 441 F. 2d 1957 (C.A. 7): Zucker y.

452-787—7 1—_—__2

14 F

cisions here constitute a reaffirmation of the approach

it has evolved in the twenty years since television and

radio came of age.°

Panitz, 299 F. Supp. 102 (S.D.N.Y.); Kissinger v. New York

City Transit Authority, 274 F. Supp. 438 (S.D.N.Y.) ; Hillside

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

(Wash.); Wirta v. Alameda-Contra Costa Transit District, 64

Cal. Reptr. 430, 484 P. 2d 982 (Cal.). These are all cases in

which those responsible for access to an advertising forum have

no corresponding responsibility to assure balanced coverage

of contending positions; nor are there special considerations, as

here, which suggest that such an obligation should be im-

posed. In those cases, the question was simply whether the

ideas expressed in editorial advertising were to be given access

to the forum at all. Under broadcasters’ public interest obliga-

tions and the fairness doctrine, however, controversial questions

of public importance must be given access to the broadcast

forum, although in a format that is subject to licensee discre-

tion.

*The Commission's 1945 decision in United Broadcasting

Co., 10 F.C.C. 515, relied on by the court of appeals (App. A,

pp. 42a-43a), reflects the Commission’s view before it had

fully articulated licensees’ duties under the fairness doctrine.

Its basic report on Editorializing by Broadcast Licensees, 13

F.C.C. 1246, was not adopted until 1949; and its Fairness

Primer, 29 Fed, Reg. 10415, was not published until 1964.

Moreover, the statutory public interest standard has always

been construed as requiring the licensee itself-to determine what

programming is in the public interest, Regents.of New Mexico

v. Albuquerque Broadcasting Co., 158 F. 2d 900, 905-906 (C.A.

10), and claims of a private right to have material broadcast

have been consistently rejected by the courts. Mc/ntire v. Wm.

Penn Broadcasting Co., 151 F. 2d 597, 600-601 (C.A. 38), cer-

tiorari denied, 327 U.S. 779; Massachusetts Universalist Con-

vention v. Hildreth & Rogers Co., 183 F. 2d 497, 501 (C.A. 1).

See also David Green v. Federal Communications Commission.

447 F. 2d 323 (C.A.D.C.), noting (éd. at 328) that “no in-

dividual member of the public has the right of access to the air:

the licensees may exercise their judgment as to what material

is presented and by whom.”

matin een ts

eG SEN

| 15

What further adjustment and changes are desirable

or possible may be considered in the Commission’s

pending general inquiry into the fairness doctrine.’

But even if the Commission should reach a result simi-

lar to that ordered by the court of appeals, it will have

done so only after careful and thorough consideration

of the evidence and opinions elicited in this inquiry.

The financial burdens on the licensees, whether and to

what degree the licensee would be able to control the

views and the manner in which they are expressed,

the amount of time that should be allocated to con-

troversial advertising, how disputes regarding refusal

to sell time to a certain group would be resolved, on

what basis a licensee could reject certain controversial

advertising—all these factors and many more would

have to be taken into account in determining not only

what kind of regulations the Commission should adopt

to implement a rule requiring that licensees accept

public issue advertising, but also whether such a rule

should be adopted at all. "y

The need for engaging in this kind of far-reaching

and thorough inquiry before making such a signficant

regulatory decision is precisely why Congress decided

to create an administrative agency to handle the task.

In this gase, however, the court has, in Judge MeGowan’s

words, attempted to “dictate the result in advance.”’ ®

* Notice of Inquiry and Notice of Proposed Rule Making in

Dkt. No. 18859, 23 F.C.C. 2d 27. 35 Fed. Reg. 7820: Notice of

Inquiry in Dkt. No. 19260, 30 F.C.C. 2d 26, 36 Fed. Reg. 11825.

*Indeed, the reasoning of the court of appeals’ opinion,

which is based on the proposition that “the crucial controls”

must be in the hands of the purchaser of time (App. .A, p. 23a),

This Court has frequently commented on the impropri-

ety of efforts by a reviewing court to fore-ordained

through ad hoc determination an agency’s orderly de-

velopment of policy by commanding the adoption of

the court’s own policy views. American Lines v. L. & N.

R. Co., 392 U.S. 571, 591-598; United States v. Sas-

katchewan Minerals, 385 U.S. 94; Federal Power

Commission v. Idaho Power Co., 344 U.S. 17, 20.

This allocation of functions between court and

agency is not rendered inapplicable here by the court

of appeals’ conclusion that a licensee’s acceptance of

commercial advertising, without also accepting edi-

torial advertising, is unconstitutional discrimination

against “preferred’’ speech. Given the inevitable limi-

tations on access to broadcasting, the question of dis-

crimination is more meaningfully viewed in terms of

how the licensee allocates air time between commer-

cial uses and public issue speech, rather than in

terms of the format he chooses. The licensees’ public

interest duty under the fairness doctrine assures that

broadcasters, which derive their basic revenues from

seems to suggest that it would be impermissible to refuse to

sell advertising time on the ground that a similar viewpoint

has already been adequately presented (App. A, pp. 26a-27a), on

the ground that the matter is unimportant (App. A, p. 24a), and

perhaps even on the ground that, short of a finding of clear

and present danger, the content is unsuitable for entry into the

home (App. A, p. 30a). In light of the emphasis on licensee re-

sponsibility for the content and overall fairness of its pro-

gramming in the Commission’s regulatory tradition, the Com-

mission’s task in attempting meaningfully to implement the de-

cision below would thus be formidable at best (see Judge

McGowan’s dissenting opinion at App. A, pp. 44a-47a).

commercial advertising, will also devote substantial

air time to controversial issues of public importance.

There is, therefore, no invidious discrimination

against the broadcasting of what the court below

called preferred speech.°

The court of appeals’ decision will have far-reach-

ing effects on the broadcast industry. Each refusal to

sell time for editorial advertising will raise potential

constitutional questions presumably to be resolved ini-

tially by the Commission and ultimately by the courts.

Under the Commission’s current approach complaints

about a licensee’s performance in fairly presenting

issues of public importance are resolved when raised

and evaluation of the licensee’s overall performance

is undertaken upon complaint at license renewal time.

It would now be necessary for the Commission either

to provide hasty guidelines or to face a deluge of

complaints from innumerable parties denied the right

to broadcast their particular editorial advertising

during the limited broadeast time available. The

First Amendment is not necessarily served by mak-

ing a government agency the arbiter of who shall

speak and who shall not. Cf. 47 U.S.C. 326. Yet that

is the role the court of appeals now thrusts upon the

Commission, even though it does not seem to be a

role Congress intended for the Commission. See 47

U.S.C. 153(h) ; 47 U.S.C. 315(a) ; 47 U.S.C. 326.

*For this reason, cases such as Cor vy. Louisiana. 379 U.S.

536; Fowler v. Rhode Island, 345 U.S. 67; and Niemotko v.

Maryland, 340 U.S. 268, are inapplicable.

EFAS Rsk OS Serer bey yt RT RAIS ee Cae gee mca oneerm neers cece vere

oR? ? Sr tdets ooak, £

CONCLUSION

The issues are important, and well worthy of this

Court’s consideration. The petition for a writ of cer-

tiorari should be granted.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

RicHarD W. McLaken,

Assistant Attorney General.

Howarp E. SHaPIRo,

LEE A. Rav,

Attorneys.

Ricuarp E. Winey,

General Counsel,

Federal Communications Commission.

JANUARY 1972.

APPENDIX A

United States Court of Appeals for the District of

Columbia* Circuit

No. 24492

BustnEss Executives’ Move ror VIETNAM PEACE,

PETITIONER

Vv.

. HeperaL CoMMUNICATIONS COMMISSION AND

UnitTEp States or AMERICA, RESPONDENTS

_ Post-NEwsweEexk Stations, Capita AREA, INc.,

INTERVENOR

No. 24537

Democratic NaTIONAL CoMMITTEE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION AND

UnitTep Staves or AMERICA, RESPONDENTS

AMERICAN BROADCASTING ComPaniss, Inc. and

CoLuMBIA BroaDcastin@ System, INC., INTERVENORS

Petitions for Review of Orders of the Federal

Communications Commission

Decided August 3, 1971

Before Wright, McGowan and Rosinson, Circuit

Judges

Opinion filed by Wricut, Circuit J udge

Dissenting opinion filed by McGowan, Circuit Judge

WRIGHT, Circuit Judge: In these cases we are asked

to decide whether a broadcast licensee may, as a gen-

(1a)

ie FI EOE EI SE TE NG PLT pa

eral policy, refuse to sell any of its advertising time

to groups or individuals wishing to speak out on con-

troversial public issues. The Federal Communications

Commission concluded that such a policy is permis-

sible. We reverse the Commission’s decision. And we

remand for further proceedings.

The principle at stake here is one of fundamental

importance: 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 broad-

cast 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 tele-

vision 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

enlivening 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 pres-

entations which advertise products or which deal with

‘‘noncontroversial”’ matters, and confining the discus-

sion of controversial public issues to formats such as

the news or documentaries which are tightly controlled

and edited by the broadcaster. In the Commission’s

view, an attack on the permissibility of this practice

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

242 (1970); Democratic National Committee, 25 F.C.C. 2d 216

(1970).

PERLE AE ISTE IIE OEE IG Me AN FS oS

~ ee Sa

“goes to the heart of the system of broadcasting which

has developed in this country.’’* We disagree. The

actual issue before us is relatively narrow and we

decide it narrowly. We do not have to cut to the

“theart”’ of our system of broadcasting ; we leave undis-

turbed 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 an-

nouncements are accepted. We do not hold, however,

that the planned announcements of the petitioners—or,

for that matter, of any other particular applicant for

air time—must necessarily be accepted by broadcast

licensees. Rather, we confine ourselves to invalidating

the flat ban alone, leaving it up to the licensees and the

Commission to develop and administer reasonable pro-

cedures and regulations determining which and how

many “‘editorial advertisements”’ will be put on the

air.

Both petitioners in these cases are organizations

whose primary modus operandi is public persuasion

and communication. As a rule, they do not attract

attention to their views by performing newsworthy

acts, such as engaging in civil disobedience or organiz-

ing mass demonstrations. 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

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

at 221.

4a ¢

media for their purposes. Yet they contend that their

self-expression on those media—and, therefore, the

public’s access to their views—is significantly inhibited

by broadeaster policies barring any and all paid edi-

torial messages from the airwaves.

The Business Executives Move for Vietnam Peace

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

ness owners and executives, organized in opposition to

the war. BEM apparently believes that it is in a posi-

tion 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 recorded one-minute radio an-

nouncements. The announcements urged ‘immediate

withdrawal of Ameriéan forces from Vietnam and

from other overseas military installations’’ and fea-

tured statements by leading businessmen and retired

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 extraordinarily 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

announcements on WTOP, an all-news -radio station

in the nation’s capital. Like most broadcasters,

WTOP sells substantial 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 particular objection to

the planned announcements. Rather, it relied solely

upon an across-the-board policy barring all editorial

advertisoments—“its long established policy of refus-

ing to sell spot announcement time to individuals

or groups to set forth views on controversial issues.” ®

BEM then filed a complaint with the Federal Com-

munications 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 com-

plaint. 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 political system, it is of obvious

importance that the public have access—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

diret self-expression on the broadcast media, among

them the refusal 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 edi-

torial advertisement. Rather, it cast the issue in a

Somewhat different light by seeking a declaratory

ruling from the Commission that “ [a] broadcaster

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

responsible entities, such as DNC, for the solicita-

tions of funds and for comment on public issues.”

*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, supra Note 1, 25 F.C.C. 2d at 249. There is no

indication, however, that WTOP’s “long established policy” of

refusing to sell time for any controversial advertisement would

have permitted it to sell BEM 5 minutes or 10 minutes for a

more “in-depth” treatment of its antiwar views. For a discus-

sion of the permissibility of a flat ban on “short” public issue

advertisements, see text at pages 28-29 infra,

The Commission considered the two cases together

and rejected the arguments of both BEM. and DNC

on the same day. The isues involved did not overlap

completely. For example, the Commission found a

defect in the vagueness and generality of BEM’s

fairness doctrine complaint,‘ and it resolved DNC’s

contention.concerning fund solicitation by noting that

all three télevision networks had agreed to accept

such solicitatiéns and by stating that any broad-

caster policy of ¢énfining solicitations to election peri-

ods alone “‘would appear arbitrary.” * On the matters

‘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 allega-

tions, and WTOP, on the other hand, offered a lengthy com-

pilation of news and interview shows which aired the opinions

of some antiwar groups and individuals. BEM has not pressed

its fairness doctrine argument on appeal, but rather has

relied solely upon the First Amendment right-of-access con-

tention which it also made before the Commission. Therefore.

we need not consider here the Commission’s holding that BEM

failed to shoulder its full burden of going forward under the

fairness doctrine.

5 All three television networks also commented on’ the sale

of time for editorial advertising. CBS stated it would sell

no time for such advertising, although an exception would be

made for broadcasts on behalf of political candidates or ballot

propositions. ABC said it would not sell time to most groups

for public issue advertising since that would inspire a “flood”

of requests, but it 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.” And NBC stated it “has no policy which would prevent

the purchase of program time envisioned by DNC.” We are

constrained to note here that any discrimination in the sale

of editorial advertising time in favor of political parties alone

or the “major” political parties—and totally excluding other

more issue-oriented groups or “minor” political parties—would

be highly suspect under the First Amendment. See text at

pages 33-35 infra.

central to these petitions for review, however, the

Commission resolved both cases in the same fashion,

and we, therefore, are also considering them as one.

The Commission held that it is permissible for a

broadcast licensee to follow a general policy of reject-

ing all editorial advertisements. The essence of its

reasoning in the two cases was as follows: First, it

interpreted the fairness doctrine to allow rejection of

paid controversial announcements. The doctrine,

evolyed by the Commission and endorsed generally in

the Communications Act, demands that all controver-

sial issues of public importance be covered both fully

and fairly by broadcasters. Yet the Commission held

that it leaves the licensees broad leeway to exercise

their professional judgment as to “‘the format for pre-

sentation of controversial issues ‘and all others facets

of such programming.’ ’’ Editorial advertising, the

Commission said, is simply one of several possible for-

mats for coverage of public issues. Under the permis-

sive “reasonableness”’ standard of the fairness doctrine,

acceptance of that particular format is by no means

compulsory.

Second, the Commission interpreted the First

Amendment 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 con-

tent to raise the spectre of the “chaos’’ and other prac-

tical difficulties that, it said, would attend a right of

access to the broadcast media. The Commission con-

cluded that the fairness doctrine’s requirement of full

and fair coverage—tolerant as it is of a flat ban on

the editorial advertisement format of expression—

on AiO OLED EP IEDES DE LEE PIII SA ERY RS IY Sey tid La ee —

provides as much protection of public debate as the

First Amendment demands. .

Before this court, both petitioners make substan-

tially the same attack on the Commission’s decision.

They do not ask for a ruling that all editorial adver-

tisements submitted to broadcasters must be accepted.

Nor do they seek to foreclose entirely the broad-

casters’ exercise of reasonable discretion. What they

“advocate is a limited right of access to radio and tele-

vision for paid public issue announcements. They at-

tack the Commission’s ruling that a total exclusion of

such announcement is permissible.

Petitioners have left no stone unturned in their

attack on the exclusion-of editorial advertising. They

have invoked the Communieations <Act’s ‘public

interest” requirement* and the statutory-regulatory

fairness requirement ‘—as well as First Amendment

principles—to support their argument. In other con-

texts, we might attempt to avoid the constitutional

issue by coming to a decision on nonconstitutional

grounds. But that course is neither fruitful nor pos-

sible here.

: Speaking specifically of the Commission, the Su-

= preme Court has stressed the ‘venerable principle

that the construction 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, 381 (1969).

Thus the nonconstitutional question here is whether

. °47 U.S.C. $8 307(d),309(a) (1964).

; "47 U.S.C. $315(a) (1964). For a discussion of the regu-

latory development of the fairness doctrine and its eventual

adoption in the Communications Act, see Red Lion Broadcast-

ing Co. v. F.C.C., 395 U.S. 367, 375-381 (1969).

PEAS LOL TY MODINE RP TMT VEN FEE Ce

ek bak

Ok ce aaa .

—

there are “compelling indications” that the public

interest and fairness requirements compel some open-

ing for public issue advertisements on radio and tele-

vision. In matters of allocating burdens, reforming

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 vindi--

cate “the public interest.’”?* We have also intervened

to see that broad policies developed by the Commis-

sion under the fairness doctrine are applied fully and

consistently to all cases.” However, when we are asked

to reverse 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 establishing the necessary guide-

lines, we must ourselves seek extrinsic guidance.

In these cases, that guidance comes from the Con-

stitution. Petitioners have presented no “compelling”

evidence from legislative history to indicate a congres-

sional policy in favor of, or even a real congressional

attention to, editorial advertising. Rather, their argu-

ments on the nonconstitutional points closely parallel

their constitutional arguments. The general polieyv

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 built up around them.

* See, e.g. Office of Communication of United Church of

Christ v. F.C.C.. 123 U.S. App. D.C. 328, 359 F. 2d 994 (1966) :

138 U.S. App. D.C. 112, 425 F. 24543 (1969).

°See, e.g. Retail Stere Employees Union. Local 880 vy.

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

10a

What then might be the ‘‘compelling indications”

we are to consider? The ones which seem to us truly

**compelling’’ 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

.. publie interest requirements “in light of the First

Amendment’’ matters little.

III

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 constitutional principles in this area is still very

much in progress. Until quite recently, the only in-

terest raised to constitutional status was that of the

broadcast licensees themselves. In a leading case, the

Commission’s powers over program content were at-

tacked and upheld with reference solely to the li-

censees’ right of immunity from governmental

interference with their “speech.’”? The scarcity of

broadcast frequencies was said to justify some regula-

tion trenching on the broadcasters’ First Amendment

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

319 U.S. 190 (1943). These cases mark a new effort

by members of the public to assert their First Amend-

ment interests in the operations of radio and

television.

There is seant precedent for such an effort. Indeed,

the few previous attempts by individuals or groups to

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

U.S. 131, 166 (1948). Congress itself has prohibited any inter-

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

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

5 29 “St GEIL EIT RNB ERY AE IE LER ON DELI IEE EO ORS ae F

ce ashe ce ve ee

il he EN athe 8 i SS A Ate

lla

enforce their First Amendment interests in court have

failed. In each case, the litigants have run up against

not only an unreceptiveness to, their constitutional

theory, but also a crabbed judicial view of “state

action’’—a view that the “[First] Amendment limits

only the action of Congress or of agencies of the

federal government and not private corporations such

as [broadeast licensees].’’ Massachusetts U niversalist

Convention v. Hildreth &: Rogers Co., 1 Cir., 183 F.2d

497, 501 (1950) ; McIntire v. W m. Penn Broadcasting

Co. of Philadelphia, 3 Cir., 151 F. 2d 597, 601 (1945).

See also Post v. Payton, E.D. N.Y., 323 F.Supp. 799

(1971).

We believe the path is now clear of such doctrinal

impedimenta. Perhaps the most important recent de-

velopment is the Supreme Court’s seminal decision in

Red Lion Broadcasting Co., supra. There the Court

upheld another aspect of the Commission’s regulation

of program content—the fairness doctrine’s personal

attack and campaign editorial rules. However, the

Court’s opinion went well beyond the scarcity ration-

ale of the National Broadcasting Co. case. It justified

the Commission’s interference with broadcasters’ free

speech by invoking specifically constitutional rights of

the general public which, it said, underlie and support

the fairness doctrine rules at issue. Issuing what

must become a clarion eall for a new public concern

and activism regarding the broadeast media, the Court

stated that ‘the people as a whole retain their * * *

collective right to have the medium function eon-

sistently with the ends and purposes of the First

Amendment.” It went on to Say:

“* * * The right of free speech of a broad-

1395 U.S. at 390.

452-787—71—__-3

12a

caster * * * does not embrace a right to snuff

out the free speech of others. ** * —

* * * * .

«“* * * TA] licensee has no constitutional

right * * * to monopolize a radio frequency to

the exclusion of his fellow citizens. * * *

* * * * *

«“* * * Tt is the right of the viewers

and listeners, not the right of the broadcasters,

which is paramount. * * *’’”

Of course, the Red Lion Court had to invoke the

public’s First Amendment interests for a narrow pur-

pose only—to uphold legislative and administrative

action already taken. It did not have to reach the is-

sue, presented in these cases, of invoking those in-

terests for a direct attack on broadcasters’ policies

approved by the Commission. However, the language

used by the Court is significantly expansive. It spoke

of a First Amendment “‘right’’ held by ‘‘the people

as a whole.” A constitutional “right’’ is hardly deserv-

ing 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 leg-

islative and executive branches. The First Amend-

ment, after all, contains nothing analogous to the fifth

section of the Fourteenth Amendment, authorizing

Congress to enforce constitutional interests unenforce-

able by the courts.”

For many purposes, it is proper to consider broad-

cast licensees as “private’’ businesses. Yet, fér purposes

12 Jd. at 387, 389, 390.

13On 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, 384 U.S. 641 (1966).

Of course, the Fourteenth Amendment does not apply to fed-

eral regulation of the broadcast industry, since no interfer-

ence with the states is involved.

13a

of the First Amendment, “ [o]wnership does not al-

ways 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 impregnated with a governmental char-

acter as to become subject to the constitutional limita-

tions placed upon state action.” Evans vy. Newton, 382

U.S. 296, 299 (1966). The Red Lion Court itself com-

mented on the impermissibility of “private censor-

ship” and cited old doctrine that “ ‘[f]reedom of the

press from governmental interference under the First

Amendment ‘does not sanction repression of that free-

dom by private interests.’”* The reach of the First

Amendment, therefore, depends not upon “public”—

“private” technicalities, but upon more functional con-

siderations. They are (1) the governmental involve-

ment in or public character of a particular enterprise,

and (2) the importance or suitability of that enter-

prise for the communication of ideas.*®

* 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 Amend-.

ment rather than with free speech rights under the First

Amendment. However, the principle of governmental involve-

ment developed therein has been applied equally well in the

First Amendment context. See, ¢.9., Public Utilities Comm’n v.

Pollak, 343 U.S. 451 (1952) ; Farmer v. Moses, S.D). N.Y.. 239

F. Supp. 154 (1564). The principle of “public character” may

be found in decisions dealing directly with application of First

Amendment rights to “private” entities. See, é.g., Marsh v.

Alabama, 326 U.S. 501 (1946) ; Amalgamated Food Employees

Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308

(1968); Zanner vy. Lloyd Corp. D. Ore., 308 F.Supp. 128

(1970); Diamond y. Bland, 91 Cal. Rptr 501, 477 P. 2d 733

(1970). The importance and suitability of a particular place

for the communication 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.

—

14a

The last few decades of court decisions expanding

the concept of “state action”? have focused on myriad

indicia of governmental involvement and public char-

acter. Many of them are apparently applicable to the

operations of the proadeast industry." But we need

stress only two more basic factors which, taken to-

eether, bring broadcast licensees well within the ambit

of the First Amendment for the purposes of these

cases. First, the general characteristics of the broad-

cast industry reveal an extraordinary relationship

between the broadcasters and the federal govern-

ment—a relationship which puts that industry ina

class with few others.” It is one of ‘tinterdependence”

and ‘‘joint participa[tion ].”’ See Burton v. Wilming-

ton 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 road-

casting medium as the Bureau of Engraving is respon-

aa.

16 Dissenting in the BEM case now under review, Commis-

sioner Johnson dealt exhaustively with the Supreme Court's

state action doctrine, isolating cight separate indicia of “state

action.” He argued very strongly that all eight indicia apply

to broadcast licensees. Business Executives Move for Viet-

man Peace, supra Note 1, 25 F.C.C. 2d at 253-264. Because

this highly analytical—one might say mechanieal—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.

7 In 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. -1ssociates & Aldrich Co. Inc. v. Dimes

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

Chicago Tribune Co. 7 Cir.. —— F. 2d ——. 39 U.s. LL. Week

2360 (December 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.

LOGIE LE LE LILI ERLISTE LOL ELOISE. EOI IL PEA EB nereemenmeens

lia

sible for the existence of United States currency.

It has long been recognized that the airwaves are ‘ta

limited and valuable part of the public domain,”

leased out temporarily by the federal government

which retains ultimate control over them. Federal

agency review and guidance of broadcasters’ conduct

is automatic, continuing and pervasive.’ For bread-

cast licensees are considered the ** proxies” or **fiduci-

18 Pemberton, The Right of eleeess lo Mass Mediu. in N,

Dorsen (ed.), Tre Rigirs op Americans 277. 290 (1971). The

Government. is also directly responsible for the very existence of

particular broadcasters, “| 1 ]xisting broadeasters have often at-

tained their present position because of their initial government

selection in competition with others * * *, * * * [Their pres-

ent] advantages are the fruit of a preferred position conferred

by the Government.” Red Lion Broadcasting Co. vo FCM.

supra Note 7, 395 U.S. at. 400.

* Office of Communication of United Church of Christ v.

F.C.C.. supra Note 8. 123 U8. App. D.C. at 337. 359 F. 2d at

1003.

* The licensing-out or delegation of governmental authority

has been an element in some of the Supreme Court's mest ex-

pansive state action decisions. Nee Erans v. Vew Bn. 382 Ue

296 (1966); Burton v. Wilmington Parking . duthority, 365 U.S.

715 (1961); Smith v. Allright, 321 U.S. 649 (1944). The mere

existence of a licensing or delegation relationship is not. of

course, enough by itself to establish state action: licensed

pharmacists cannot be equated with licensed broadeasters. The

actual extent of governmental involvement and the publie char-

acter of theventerprise in question remain the final tests of state

action.

* The activities of a governmental regulatory agency have

also been emphasized in at least one of the Supreme Court's

expansive state action decisions. Sce Publie Utilities Coman'n

v. Pollak, supra Note 15, 343 U.S ae 462, citing American Com-

misnccations Assn vy. Pouds,4 39 US. 382, 401 (1950) (°{ WJhen

authority derives in part from i ocen mien thumb on the

scales, the exercise of that power by private persons becomes

closely akin, in some respects, to its exercise by Government

itself.”).

16a ,

aries’’ of the people.” Almost no other private busi-

ness—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 broadcast-

ers’ action now under review here. All of the cases

in which previous courts have characterized broad-

casters as mere “private corporations’? immune from

First Amendment constraints, see text at page 12

supra, have involved direct suits against broadcast

licensees. In the cases before us now, however, the

Commission has given its imprimatur to the flat ban

on editorial advertising. It specifically considered

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 indi-

cates “state action.”” Indeed, in a case similar to

22 See Red Lion Broadcasting Co. v. 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 1003.

2 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. vy. Sullivan, 376 US.

254 (1964); Van Alstyne, Mr. Justice Black, Constitutional

Review, and the Talisman of State Action, 1965 Duxr L.

J. 219, 227-230. 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, 130 U.S. App. D.C. 126, 397 F. 2d 687

nets et PIO DOT IT BOS LE Sage i 4

EPRI IOL LLG LIES LESLIE OS ELE LER: LE OLLIE! AI EOL

Yr 17a

; urs the Supreme Court held that a private bus com-

pany franchised by the federal government and reg-

ulated by the District of Columbia Public Utilities

Commission could be subject to First Amendment

constraints. It emphasized the specifie 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 authorization, Capital Transit now enjoys

a substantial monopoly of street railway and bus

transportation in the District of Columbia. We

do, however, recognize that Capital Transit op-

erates its service under the regulatory supervi-

sion of the Public Utilities Commission of the

District of Columbia which is an agency author-

ized by Congress. We rely particularly upon the

fact that that agency, pursuant to protests

against the [challenged action], ordered an inves-

tigation of it and, after formal public hearings,

ordered its investigation dismissed on the ground

that the public safety, comfort and convenience

were not impaired thereby. * * *’

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

462 (1952). (Footnote omitted.)

Broadcasting’s importance and suitability for com-

munication of ideas need not be labored. Mere pres-

ence of large and appropriate audiences (and thus

opportunities for effective communication) has some-

times been emphasized by the courts to show the rel-

(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, 326 U.S. at

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

supra Note 20, 365 U.S. at 725.

—7

18a

evance of First Amendment-protections.* In Amal-

gamated Food Employees Union Local 590 v. Logan

Valley Plaza, Inc., 391 U.S. 306 (1968), for example,

the Supreme Court held that a privately owned shop-

ping center was an appropriate place for the *

“speech” of labor union picketers. It stressed “[t]he

large-scale movement of the country’s population

from the cities to the suburhs [that] has been accom-

-panied by the advent of the suburban shopping cen-

ter * * *.”’ Id. at 324. With this demographic change,

the “speech” that once took place on the public

streets around downtown shopping areas must be

allowed to move to privately owned parking areas

in the suburbs, for that is where the relevant audi-

ences now are. The technological and cultural changes

connected to the current preeminence of the broad-

cast media as our primary means of communication

are no less striking. The soap box orator and the leaf-

leter are becoming almost obsolescent; their Satur-

day 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 broad-

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

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 audience may be found.”). Of course,

the cases before us involve the right to speak on a medium

of communication, but not in a particular place. Thus many of

the considerations are different; but the basic concern with

the ability to reach the relevant audience applies in both

situations.

**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. v. F.C.C.. supra Note

7, 395 U.S. at 386 n.15.

19a _

cast media are specifically dedicated to communica-

tion. 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-govern-

ment and free expression, so central to the First

Amendment. That can he said of almost no other

“private” enterprise. :

Broadeast licensees, then, serve not only as ‘‘speak-

ers” but also as administrators of a highly valuable

communications resource, subject-to First Amendment

constraints. Their dual role demands that their own

constitutional interests in free speech coexist with

those of the general public. But what are the dimen-

sions of the public’s First Amendment interests in the

operation of radio and television? 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

broadcasters’ allocation of advertising time. They deal

only with time relinquished by broadcasters to others ;

petitioners argue only that, in relinquishing that time,

broadcasters must not discriminate against protected

expression. In normal programming time, closely con-

trolled and edited by broadeasters, the constellation of

constitutional interests would be substantially differ-

ent. In news and 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 alloca-

tion of advertising time, the broadcasters have no

6 See id. at 396.

—

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

opportunity to speak.

Though the broadcasters themselves have no sub-

stantial First Amendment interest in the allocation of

advertising time, we might expect that the interest of

members of the public—potential advertisers—would

be quite strong. However, the Commission and the

broadeaster-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 substantial 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

following premise. They define the public’s overall

‘ constitutional interests in the operations of radio and

television quite narrowly. The public’s only interest,

they suggest, is as viewers and listeners—not as speak-

ers. 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 broadcast 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 @nd

intervenors contend that the public already receives

“suitable access” to controversial views on normal

programming time. Application of the fairness doc-

trine’s requirement of full and fair coverage of public

issues in non-advertising time, they suggest, ensures

that all views on these issues will in fact be presented.

27 Td. at 390.

eae Ty ee ee,

2la

They assume that editorial advertising adds nothing

new to the debate. The fairness guarantee alone, they

say, is enough to eliminate petitioners’ claim on adver-

tising time—and enough to satisfy the First Amend-

ment. 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 decply rooted in’ First

Amendment law.* The Red Lion Court stressed that

right, since it was the one prinarily relevant to the

fairness do¢trine rules at issue in the ease. gut 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 Su-

preme 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 broadeast media. The Red Lion

Court itself stated specifically that “*[i]t is the pur-

pose of the First Amendment to preserve an unin-

hibited marketplace of ideas [in the broadeast

media].’’*® This court, similarly, has said that the

Commission is obliged to administer the airways “in

such a manner that * * * debate on public issues is

‘uninhibited, robust and wide-open.’ ’’ National Ass'n

of Theatre Owners y. F.C.C., 136 U.S. App. D.C. 352,

365, 420 F. 2d 194, 207 (1969). The reference to “unin-

hibited”’ debate is, of course, borrowed from the Su-

* See Stanley v. Georgia, 394 U.S. 557. 564 (1969): Lamont

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

Justice Brennan, concurring); Martin vy. City of Struthers,

319 U.S. 141, 143 (1943). The “right to receive.” however,

has not been considered the central First Amendment interest,

and never the only First Amendment interest,

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

22a

preme 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

Amendment’s concern extends beyond the mere foster-

ing 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 debate.

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

perhaps, most important—First Amendment interest.

That is the interest of individuals and groups in effee-

tive self-expression. The Red Lion Court did say that

‘it is idle to posit an unabridgeable First Amendment

right to broadeast 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 interest in self-expres-

sion be brushed aside entirely; it allows for a reason-

ably 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 interest in speaking up ourselves as well as in hear-

; ing 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 Amend-

j ment interests constrain broadcasters not only to

3 provide the full spectrum of viewpoints, but also to

present them in an uninhibited, wide-open fashion

and to provide opportunity for individual self-

3° Td, at 388.

31 See, e.g., T. Emerson, Towarp a GENERAL THEORY OF THE

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

wii

23a

expression.” How do these three First Amendments

interests relate to a more specific interest 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 publie. The initia-

tive to present a particular view does not have to

come from a member of the broadeaster’s staff. Sec-

ond, a paid advertisement is basically controlled and

edited by the advertiser. 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 abbreviated and edited; reporters’

commentary will qualify what he has to say. For it is

the broadcasters’ responsibility 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 important and in-

teresting. 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.”

* Of course, all three of these interests apply to non-adver-

tising 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 com-

mentary. See Democratic National Committee, supra Note 1, 25

F.C.C. 2d at 222-993, 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.

** See text at pages 27-29 & Note 37 infra. See also Note, A

Fair Break for Controversial Speakers: Limitations cf the

Fairness Doctrine and the Need for Individual Access, 39

Gro. Wasn. L. Rev. 532, 557-560 (1971).

24a |

The importance of initiative and control to the First

Amendment interests in wide-open debate and indi-

vidual self-expression should be obvious. Vigorous,

free expression is promoted when members of the

public have some opportunity to take the initiative

and editorial control into their own hands on the

broadeast media. It has traditionally 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 guarantec has

always been a ‘‘free market” in which partisans who

F feel strongly on particular issues may decide on their

own to speak out and to speak out in their own way.

The present system, allowing a flat ban on editorial

advertising, conforms instead to a paternalistic struc-

ture in which licensees and bureaucrats decide what

issues are ‘‘important,” 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 initia-

tive and editorial control is inimical to the First

Amendment. The importance of fair, objective and

full treatment of controversial issues on normal pro-

gramming cannot be doubted. But, as the Supreme

Court has said in the context of classroom dehate,

“supervised and ordained discussion’”’ is not enough.

Tinker v. Des Moines School District, 393 U.S. 503

(1969). “The Nation’s future depends upon leaders

trained through wide exposure to that robust exchange

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

d a strong First Amendment interest in opening up

PO reer ‘

hi GAEL SIE NH PARMA LANDES A Dit DSA IAEA LOAM

FERIA IEE IS ELI TORE TT TEE” PS PRL MN SEN EERE I ED

; 25a

channels for more spontaneous, self-initiated, self-

controlled expression.*

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

mission’s fairness doctrine and invigorate its enforcement, so

lackluster in the past. We commend the Commission’s considera-

tion of new rules to “encourage and implement” presentation of

opposing viewpoints by reemphasizing the obligation to “seek

out” controversial issues. Obligations of Broadcast Licensee

Under the Fairness Doctrine, 35 Frp. Rec. 7820 (1970). But,

as the Commission says, the proposed rules would be but a

“modest * * * step in promoting access to the media.” /d. 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 im-

portant 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 Amend-

ment 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 commercial 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 extraordinary 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 them-

selves. Allowing such a narrow group, motivated largely by busi-

——

26a

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

terest emphasized by the Commission and interven-

ors—the interest of ‘“‘viewers and listeners” in passive

access to the full spectrum of viewpoints on radio

and television—editorial advertising plays an impor-

tant role. The concept of ‘‘full’’ coverage of ‘‘contro-

versial’’ issues “of public importance” is vague to say

the least, and leaves much to the broadcasters’ discre-

tion (and possible oversight). Assuming that broad-

¢ casters are sometimes fallible, the goal of a fully in-

formed public is best attained by opening of outlets

for members of the public to supplement the licensees’

assessments of “importance,” ‘‘controversiality” and

+ “full” coverage. The Commission’s and intervenors’

argument might be somewhat stronger if it were de-

. signed to support a partial ban on editorial advertis-

» ing concerning issues and views which have in fact

3 been substantially aired on normal programming

4 time.” The argument is unconvincing, however, in sup-

port of a flat, per se ban on any and all editorial ad-

vertisements.

Moreover, even if ‘‘antiwar views,’’ for example,

have in fact been presented on news and interview

;

ness profit, to set the agenda for editorial advertising is uncon-

scionable and contrary to First Amendment precepts. It is crucial

that noncommercial groups and individuals have the same rights of

initiative as commercial advertisers.

3 ** The guarantees of full and fair coverage have proved par-

ticularly 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).

8° Even then, however, the special attributes of editorial ad-

vertising would not be eliminated by the broadcaster's own

coverage. See text at pages 23-25 supra and pages 27-29 infra.

LLIB ENE GF

27a

shows, it is not necessarily clear that a particular antik

war editorial advertisement would add nothing to the

public’s information and understanding. ‘* View-

points’’ 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 intensity of feeling

are important components.” Again, an across-the-

board ban on editorial advertisements—leaving the

quality of publie debate in the control of one licensee,

supplemented by no other autonomous inputs—mayv

well ignore opportunities to enliven and enrich the

publie’s overall information.

We recognize, of course, that the onesidedness and

private editing of particular ““spot”’ editorial adver-

tisements may in the end steer viewers and listeners

away from the *‘truth’’ by distorting complex issues.

Being brief, these ‘spot’? messages—no less than nor-

mal broadeast news coverage—may not canvass all pos- |

sible arguments or develop all possible implications of

the position they espouse. But that does not mean that

“In Lee v. Board of Regents of State Colleges. W.D. Wis.,

306 F. Supp. 1097 (1969), affirmed, 7 Cir., 441 F. 2d 1257 (1571),

the court held that a school newspaper was obliged under the

First Amendment to print antiwar editorial advertising. even

though antiwar views could be printed in the newspaper's news

and letters-to-the-editor columns. The court stressed the qualita-

tive—and valuable—difference in expression of views through

an editorial advertisement. “It is readily apparent,” it said, “that

a paid advertisement can be cast in such a form as to command

much greater attention than a letter to the editor. Large type,

photographs, repeated publication and full pages of space are

some of the modes of expression available in an editorial adver-

tisement that might not be available in a letter to the editor.”

7d. at 1101. Another court has come to the same result in a

hewspaper editorial advertising case. Zucker vy. Panitz. S.D.

N.Y., 299 F. Supp. 102 (1969). See text at pages 31-32 infra.

452-787—71_—__4

—

28a

they are unprotected by the First Amendment. Our

Constitution protects many forms of misleading and

overly simplified political expression in order to ensure

robust, wide-open debate. *‘[N ]Jeither factual error nor

defamatory content suffices to remove the constitu-

tional shield from criticism of official conduct * * *.”

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

273. 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 marketplace of ideas pro-

tected by the First Amendment, after all, is not gov-

erned by the tastes and intellectual standards of the

universities or the broadeast newsroom—or even of

judicial chambers.

j We conclude, therefore, that the fairness doctriness

’ 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

Supreme Court’s only recorded comments on constitu-

tional protection for editorial advertising—comments

inade in the context of newspapers, like broadeasting

a medium which may be expected, if not required, to

present the various sides of public issues in its non-

advertising space. The Court said that editorial adver-

tisements, unlike commercial advertisements,” are of

fundamental First Amendment concern, since they

deal with political questions. And it protected thein

from libel law attack to the same extent as the news-

papers’ own editorial columns, for

38 Commercial advertising—indeed, any sort of commercial

speech—is less fully protected than other speech, because it

generally does not communicate ideas and thus is not directly

related to the central purpose of the First Amendment. See

Breard v. City of Alewandria, 341 U.S. 622 (1951); Valentine

v. Chrestensen, 316 U.S. 52 (1942).

‘

ee HN “ey ER SER BIH TS IE, PEROT OM RNAI

29a

‘*[a]ny other conclusion * * * might shut off

an important outlet for the promulgation of

information and ideas by persons who do not

themselves have access to publishing facilities—

who wish to exercise 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 secure ‘the widest

possible dissemination of information from

diverse and antagonistie sources.’ * * *"

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

266.

We come now to the aspect of the broadcasters’

policy which, petitioners say, trenches on the First

Amendment interest in editorial advertising. The eon-

stitutional defect of that policy is somewhat ironic.

The New York Times Court made clear that the fact

distinguishing fully protected editorial advertising

from less fully protected commercial advertising is

that the former deals with controversial publie issues.

Indeed, the political nature of editorial advertising

places it near the core of the First Amendment. How-

ever, the very characteristic which affords it strict

constitutional protection is also the characteristic

causing the broadeasters’ challenged 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 broad-

casters who accept no advertisements whatever.” We

*° 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 6 supra. However, on appeal DNC’s argu-

ments have been focused entirely on broadcasters who do

30a

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 discrimination,

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 themselves, 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.

4 Every one of them—four federal courts and two state

j supreme courts—has held that once a forum, subject

» to First Amendment constraints, has been opened up

for commercial and “noncontroversial” advertising,

a ban on “controversial” editorial advertising is un-

constitutional unless 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, 8.D. N.Y., 299 F. Supp. 102 (1969) ; Kissinger

already accept noncontroversial advertising. The interests of

5 particular licensees in keeping all advertising off the air were

not explored before the Commission 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 presented

} here, we do not decide them.

4 40 See, e.g., Schneider v. State. 308 U.S. 147 (1939): Haque

q v. 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 Sur. Cr. Rev. 1.

MAP MINA TON Dit es ad tek Ae ee RTE OMIT eG OER DT RE re AM eS

3la

v. New York City Transit Authority, S.D. N.Y., 274

F. Supp. 4388 (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, 434 P. 2d 982 (1967). We join this

unbroken 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 Amend-

ment values." On one hand, the court must assess

the constitutionally protected interest in the particu-

lar 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 speak-

ing, 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 adminis-

“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 demon-

strating in some fashion. For general discussions of the cases

and the principles applied, see H. Katven, THe Neraro anp

THE First AMENDMENT (paper ed. 1965): Note, Regulation

of Demonstrations, 80 Harv. L. Rev. 1773 (1967). There is

no reason why the general principles applied in cases involv-

ing access to places should not apply to our cases involving

access to a particular medium of expression. See Note 24

supra.

“Conv. Louisiana, 379 U.S. 536 (1965).

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

32a

trator 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 administra-

tor has determined that the normal and proper func-

tions 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 distinguishing the disruption they

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 hut

would close it to controversial political speech. By

opening up a forum for some paid presentations, in-

dependently edited: and controlled by members of the

publie, the broadeasters 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 distin-

guishing the disruptive effect of editorial advertising

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

heightened, prima facie constitutional violation. Both

free speech and equal protection principles condemn

any discrimination among speakers which is based on

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33a

what they intend to say.‘ If the First Amendment

prohibits anything at all, it must be a censorial dis-

crimination 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 (1953); Niemotko vy. Maryland, 340 U.S.

268, 272-273 (1951). Both cases involved access toa

forum already opened to others. More recently, the

Court in Cor y. Louisiana, 379 U.S. 536 (1965), invali-

dated 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

‘censorship 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 evidence in this record * * * [the dem-

onstrators were excluded] 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.

“For discussions of the First Amendment-equal protection

intersection, see Blasi, Prior Restraints on Demonstrations, 68

Micu. L. Rev. 1482, 1492-1497 (1970) ; Kalven, supra Note 40,

1965 Sup. Cr. Rev. at 29-30: Van Alstyne, Political Speakers

at Universities: Some Constitutional Considerations, 111 U. Pa.

L. Rev. 328, 337-339 (1963).

—

No doubt a discrimination against all controversial

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

less ‘‘odious” than a discrimination among different

controversial viewpoints on particular issues. But it

is a form of censorship just the same.* It is a favor-

itism toward the status quo and public apathy and,

in these cases, a favoritism toward bland commercial-

ism.** Such favoritism flies in the face of the First

Amendment, whose central purpose is to protect and

promote controversy, ‘‘uninhibited, robust and wide-

open,” on public issues.

34a

In Wirta v. Alameda-Contra Costa Transit District. 64

Cal. Rptr 480, 484 P. 2d 982, 986 (1967), the California Su-

preme Court came to the same conclusion as we do on this

issue, saying: .

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

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

ideas entitled to constitutional protection, sanctioning the ex-

pression of only those selected, and banning others. Thus the

‘ district’s regulation exercises a most pervasive form of censor-

3 ship.

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

the forum to mercantile messages while banning the vast major-

ity of opinions and beliefs extant which enjoy First Amendment

protection because of their noncommercialism. No statistical

data is required to demonstrate that in the totality of man’s

communicable knowledge, that which bears no relationship 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).

‘©Commissioner Johnson commented in his dissent that

broadcasters “have created a system in which immediate ac-

cess 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 233.

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35a

Moreover, it is by no meanis clear that a broad-

casters’ ban on ‘‘controversial”’ advertising does not

impermissibly open the door to a sub rosa diserimina-

tion among controversial ideas. The term ‘‘controver-

sial’’ is extraordinarily vague. Some advertisements

may not be deemed ‘controversial ”—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 “controversial.” *

Ads for Radio Free Europe or Army recruiting, 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

he banned entirely. The line between ideological and

nonideological presentations is an almost impossible

one to draw. All too often in our society one particu-

lar ideology—that of passivity, acceptance of things

as they are, and exhaltation of commercial values—

is simply taken for granted, assumed to be a non-

ideology, and allowed to choke out all the rest.*

“See Banzhaf v. F.C.C.. 132 U.S. App. D.C. 14, 405 F.2d 1089

(1968): Green v. F.C.C.. U.S. App. D.C. ——, —— Fog

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

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

Note 45, 434 P. 2d at 987, the California Supreme Court made

the same point very forcefully, and provided several] telling

examples:

“* * * 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 resources.

An oil refinery may advertise its products, but a citizens’ orga-

nization cannot demand enforcement of existing air pollution

statutes. An insurance company may announce its available pol-

icies, but a senior citizens’ club cannot plead for legislation to

improve our social security program.”

“See generally C. Waxman (ed.), THe Env or IproLogy

DepaTe (1969).

———y

36a,

Thus the editorial advertising ban, particularly

when licensees accept advertising generally, establishes

an unmistakable infringing of First Amendment liber-

ties. The Commission and the broadcasters, then, bear

a very heavy burden of justification. Whether we

require a ‘‘compelling” justification, an ‘‘overriding”’

justification, or a “clear and present danger’’ is rela-

tively unimportant.

It being established that there is a strong and

specific First Amendment interest in editorial adver-

tising and that the policies discriminatorily barring

such expression work a prima facie violation of con-

stitutional principles, we must consider the counter-

vailing 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 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 com-

mercial and ‘‘noncontroversial” advertising. Only

such a showing could convince us that the ban on

editorial advertisements is supported by sufficient

countervailing 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 independence and control over their fre-

quencies, giving editorial 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 broadcasters’ hands.” The

8 Statement of attorney for intervenor Columbia Broadcasting

System at oral argument before this court.

LE PE LE REI IEEE LOSS ELE LE LIE LOLI B AT

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37a

result, they say, would be a threefold 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 im-

possible. Second, they argue that compulsory accept-

ance of editorial advertising would allow a few rich

individuals or groups to buy up great blocks of time

to purvey views on only one side of important issues,

thus grossly unbalancing the broadcast station’s treat-

ment of those issues. And third, they point out that

broadcasters compelled to accept editorial advertise-

ments on one side of an issue would then be required

by the fairness doctrine to accept at least some ad-

vertisements on the other side—free of charge if neces-

sary. Provision of such free advertising 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 apparently misunderstood the narrowness of the

issue here. All that we are considering is the permissi-

bility of a total, flat ban on editorial advertising. All

petitioners ask is that broadcasters be required to ac-

cept 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

broadeast time, is Severely limited. See text at page 23

supra. Under the Communications Act, broadeasters

are not “common earriers” obliged to accept any

advertising message that is submitted.” And_peti-

*' Brief for the Commission in Case No. 245,537 at p. 12.

* 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

_—- a

——

38a

tioners do not argue that they should be. What peti-

tioners do argue is that editorial advertisements

should at least be considered and that some should be

aired.

Such a modest reform would not substantially

undermine broadcasters’ editorial control over their

frequencies. For broadcasters would retain full lati-

tude to control the content of their programming.

Their editorial control over non-advertising time

would not be disturbed whatever. All that would be

affected is their 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. Sce text at

page 20 supra. It surely cannot be equated, as the

_Commission and intervenors suggest, with the interest

of law review editors in deciding what articles 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 advertisements 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

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 candidate.”

47 U.S.C. §315(a) (1964). This statutory provision squares

perfectly with our holding 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.

ARONA ELE TS RITTER OLN II IIL TE LNG

39a

follow the modest reform at issue. For, again, broad-

casters would retain wide-ranging control. It is well

established in First Amendment law governing access

to forums that “reasonable regulations’? may be

promulgated and enforced to limit the exercise of free

speech.” At the least, there may be regulations deter-

mining the time, place and manner of speech. They

may not be used to stifle speech, but they are abso-

lutely necessary to see that too many groups speaking

at once do not drown out one another or trench over! y

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 regula-

tions providing that public issue advertising may be

aired “at no time, in no place and in no manner” over

the broadeast media.

Clearly, for example, broadcasters are entitled to

place an outside limit on the total amount of editorial

advertising they will sell. To fail to impose some such

limit would be to deny the public the other sorts of

programming which it legitimately expects on radio

and television. Similarly, “reasonable regulation” of

the placement of advertisements is altogether proper.

No advertiser has a right to air his presentation at

any particular point in an evening’s programming.

Nor does he have a right to clog a particular time

segment with his messages. A relegation of all cdi-

torial 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 broadeasters’

discretion.

58 See, ¢.g., Amalgamated Food Employees Union Local 590

v. Logan Valley Plaza, Inc., 391 U.S. 308, 320 (1968): Note.

supra Note 15.

40a

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 regula-

tions” 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 issue.’’ Broadcasters, after

all, have dealt quite successfully with the scheduling

problems involved with commercial advertising. We

require only that noncommercial advertisers be treated

in the same evenhanded way. Although many broad-

casters already do allow editorial advertisements on

the air, we have not been shown one reason, 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 danger that a few individuals or groups might

come to dominate editorial advertising time. Of course,

the mere fact that wealthy people may use their oppor-

tunities to speak more effectively than other people

is not enough to justify eliminating those oppor-

tunities entirely. It takes more money to operate a

magazine or newspaper—or, for that matter, a broad-

cast station—than to buy a segment of time for an

4 editorial advertisement. Yet we are not reluctant to

3 provide strict First Amendment protection for the

4 operators of magazines, newspapers and broadcast

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

advertising will cost money, but that it may be

dominated by only one group from one part of the

political spectrum. A onesided flood of editorial adver-

tisements could hardly be called the “robust, wide-

PREP LIE GLE EGIL SFE OTE BEER REET GPO

| 4la

open” debate which the people have a right to expect

on radio and television.

Again, however, invalidation of a flat ban on edi-

torial advertising does not close the door to “‘reason-

able regulations” 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 Commission and licensees to de-

velop such guidelines.“ For example, there could be

some outside limits on the amount of advertising time

that will be sold to one group or to representatives of

one particular narrow viewpoint. The licensee should

not begin to exercise the same ‘‘authoritative selec-

tion” in editorial advertising which he exercises in

normal programming. See text at pages 24-25 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 relat-

ing to licensees’ fairness obligations. Invalidation of

a flat ban on editorial advertising, of course, leaves the

Commission the power to require that if editorial ad-

vertisements are accepted on one side of an issue, then

broadcasters must also accept at least some advertise-

ments on the other side of the issue, free of charge if

necessary. See Cullman Broadcasting Co., 40 F.C.C.

576 (1963). The result of such a reasonable regula-

tion, however, need not be financial disaster. Indeed,

it is incredible that the Commission would enforce a

“In the context of regulating demonstrations or picketing,

guidelines which limit access because the same or similar groups

had already had substantial access would be unusual and per-

haps impermissible. 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.

—

42a

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 broad-

casters, the Commission could make necessary

adjustments.”

We conclude that none of the spectres raised by the

Commission and _ intervenors—spectres of chaos,

grossly unbalanced programming and financial disas-

ter—is enough to justify a flat ban on editorial adver-

tising. What real problems there are may be dealt with

while the acceptance of some editorial advertisements

is required. The keynote must be a scheme of reason-

able regulation, administered 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 Commission 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 re-

sponsibility of operating its station in the public

interest. * * *

5° We note that the Commission’s requirement of free time for

antismoking was administered generously toward the financial

concerns 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).

86 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 invest-

ment annually.” N. Jonnson, How to Tatx Back to Your

TeELeviston Ser 65 (1969). (Emphasis in original.)

LESTE LODE IESE LES ELLIE SETI OLY EI ELL LOL LEI LORE ALBEE AI LE

43a

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

providing time, on a non-discriminatory basis,

ean be stated for application to all situations

which may arise in the operation of all stations.

The Commission, however, is of the opinion that

the operation of any station under the extreme

principles that no time shall he sold for the dis-

cussion of controversial public issues and that

only charitable organizations and certain com-

mercial interests may solicit memberships is

inconsistent with the concept of publie inter-

est * * *. The Commission recognizes that good

program balance may not permit the sale or

donation of time to all who may seek it for such

purposes and that difficult problems calling for

careful judgment on the part of station

management may be involved in deciding among

applicants for time when all cannot be acecommo-

dated. 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. 015, 517-518

(1945). We agree with those views, and see no rea-

son why the Commission and broadeast licensees

should be any less competent in 1971 than they were

44a

VIL

On the basis of the foregoing, we reverse the

Commission’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 guidelines to deal with editorial advertise-

ments. Petitioners should be allowed to reapply for

advertising time; and, unless their presentations are

found to be excludable under the Commission’s guide-

lines, their applications should be accepted. Since the

issues on which BEM and DNC seek to speak are cur-

rent and changing, it is essential that regulations he

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

antiwar message or a political party message in the

accustomed 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 Supreme Court has said, “a function

of free speech under our system of government is to

invite dispute. It may indeed best serve its high pur-

pose when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even

stirs people to anger.’’ Terminiello v. Chicago, 337

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

ALE ALIN NBN EDI ONS TROL ORL DE KOM

45a

the intervenor-licensee there involved, or that the pe-

titioner in No. 24,537 is assured of being able to buy

time for its programs on public issues. What is held

is that the Constitution commands that “some”, but

not all, editorial advertising be accepted ; and the Com-

mission is directed to embark upon rulemaking to de-

termine how a licensee is to differentiate the “some”

from the all.

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 per-

ceived the same constitutional requirement as the ma-

jority responds to the practical problems by suggest-

ing that sales of a significant proportion of the total

broadcast time be made on a first-come, first-served

basis, accompanied by a possible suspension of the

fairness doctrine. That approach does not seem to me

a promising one in terms of the public’s right to know.

The difficulties derive, of course, from the physical

peculiarity which distinguishes radio and television

communication 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 Supreme 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 editorial ad-

vertising. Petitioners themselves, it is said, may con-

ceivably never be able to insist that their particular

advertising be accepted. That will depend upon the

tules which the Commission propounds.

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

heroic proportions, and one whose very complexities

46a

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 presently 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 bal-

ance which is always subject to redress by reference

tu the fairness doctrine. Failure to do so puts con-

tinuation of the license at risk—a sanction of tre-

mendous 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 operation of radio and television communications

facilities. This approach has never been thought to be

other than within the permissible limits of constitu-

tional 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 complain 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 intellec-

tual content of the great bulk of commercial advertis-

ing. The responsibility for informing the public is now

squarely on the licensee. That responsibility will only

be diluted and obscured by requiring the licensee,

against his own better judgment, to accept paid edi-

torial advertising. I do not think the First Amend-

ment requires that result, at least not within the

POLES DLBE ORT ID GIL BOLLE ILLS WR LAER GIL 2 LT BIA Nt setae cle sth

47a

context of a regulatory scheme which has made provi-

sion 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 always 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 otherwise, would be both useful

and consonant with the Commission’s continuing obli-

gation to see to it that the public interest obligations

of the licensees are being met in the most effective

way. The Commission’s currently announced pur-

pose to undertake a comprehensive and wide-ranging

review of the operation of the fairness doctrine might

well include the subject of paid editorial advertising.

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

constitutional straitjacket which dictates the result in

advance.

APPENDIX B

{Federal Communications Commission Reports]

F.C.C. 70-861

Before the Federal Communications Commission,

Washington, D.C. 20554

In Re Democratic NationaL CoMMITTEE,

WasHinaton, 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 IssutinG A STATEMENT; COMMISSIONER JOHNSON

DISSENTING AND ISSUING A STATEMENT

BACKGROU ND—-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 solicitation of funds and for comment on public

issues.” *

*Comments with respect thereto were filed by the American

Broadcasting Company (ABC) on June 11, 1970 and by the

Columbia Broadcasting System (CBS) on June 22, 1970 and

a statement by the National Broadcasting Company (NBC)

was filed on June 22, 1970.

(48a)

. mPOR ER a TE eae ae

49a

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

presenting programs and spot announcements of vary-

ing duration, some of which would be devoted to the

solicitation of funds while others may contain com-

ment on various controversial issues of public im-

portance. The campaign envisioned will, according to

DNC, require the expenditure of “thousands of dol-

lars” and thus it seeks assurance that it will be able

‘to obtain the access to the broadcast media which im-

plementation of the plan demands.’’ It appears that

in the latter part of March, 1970, CBS rejected a re-

quest 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 network

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

solicitation 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 ap-

proval. By reason of the foregoing and the alleged

common policy of, individual broadcast stations to

decline to sell time for spot announcements or pro-

grams for the broadcast of views on controversial

issues of public importance or for the solicitation of

funds, DNC states that its problem—access to broad-

east licenses for the presentation of its programs—

ean be resolved only through the issuance of the

;

50a |

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 con-

sideration and that a full statement of our views will

provide helpful general guidance for the public and

Commission licensees. We, however, do not believe

that all of the various matters raised by DNC are

susceptible to the declaratory order sought and we

cannot at this juncture rule upon every conceivable

factual situation which may arise.

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

pertinent financial considerations of present-day polit-

ical campaigning and the development of a narrow

rather than a broad-based financial support of politi-

cal parties.” DNC contends that access to mass media,

particularly radio and television, is necessary to

attract the attention and seek the support of potential

small political contributors. It is only iitj}this way,

DNC contends, that a healthy political system can

function. DNC urges that its proposed broadcast cam-

paign 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

* For example, in 1968, $90 million was expended on political

use of radio and television (equaling about 14 of the total

expenditure on political campaigning for the year). See Alex-

ander and Myers, A Financial Landslide for the GOP. For-

tune, March 1970, pp. 104, 189. Another indicative statistic is

the fact that in 1956, only 40% of the contributions to the

Democratic Party exceeded $500 whereas the figure had in-

creased to almost 80% in 1968. According to DNC the narrow-

ing of the political contribution base can result in a dangerous

concentration of the sources of revenue in special interest

groups which, in turn, threatens the entire democratic process.

ae. , yy.

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APTN NESE RTS

as NP ee ee ee ee

—

arguments advanced by DNC are based upon constitu-

tional, statutory and public policy ground.

5. The constitutional argument advanced by DNC is

essentially that the Supreme Court’s decision in Red

Inon Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367

(1969) reaffirmed the public’s First Amendment right

to hear contrasting views on issues of public impor-

tance and “employed language that would extend to

members of the public the right of access to broadcast

facilities.” DNC argues that the network policies of

ABC and CBS represent arbitrary barriers to broad-

cast facilities contrary to the law as expressed in Red

Lion, supra. DNC suggests that under the Red Lion

standard reasonable restrictions by broadcasters are

permissible—e.g., limitation of use of broadcast facili-

ties to responsible spokesmen and protection 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 com-

munications medium 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 dec-

laratory ruling requested, the refusal of a broadeaster

to selt time to DNC should be evaluated adversely

to such broadcaster at time of renewal. 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 broadcasters

making time available for political broadcasts (Re-

port and. Statement of Policy Re: Commission En

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

dla

52a

the Commission’s prior holding that an arbitrary lim-

itation of coverage of an election campaign prior to

the campaign was contrary to the public interest (Cit-

ing 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 seek-

ing not a ruling which would require a broadeaster to

accept particular programs or announcements, but

only that broadcasters may not establish arbitrary

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

contrary to the public interest.

7. Response of the Networks: In response to the

DNC request, American Broadcasting Companies,

Ine. (ABC) submitted portions of its “standards

and policies’ (The complete version has been filed in

BAL-5733, Exhibit I-B, Attachment B, Section IIT).

ABC recites its standards relating to solicitation con-

nected with appeals for charity (no solicitation with-

out specific permission of ABC) and appeals related

to religious broadcasts (solicitation permitted in pre-

scribed 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 con-

siderations. It is ABC’s judgment that DNC’s request

is concerned with ‘‘the continued strength and viabil-

ity 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.

| | 53a

: 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 will adhere to its general policy against the

sale of time for controversial issue programs and an-

nouncements. However, ABC under its ‘“‘special pub-

lic interest consideration’? standard would “‘. . . be

prepared, consistent with its other obligations, to ac-

cept 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

misunderstood CBS’ policies relating to presentation

of controversial issues and that CBS’ policies insure

full and fair presentation of such issues; (2) that a

regulatory policy which imposes common carrier obli-

gations on broadcasters would be contrary to the pub-

lic 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 Communications Act and Commis-

sion precedent.

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 presenta-

tions of controversial 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

a PRR ia Da ear es Mm esa ida Pee oe 2

54a

public.’ CBS has followed a policy of refusing the

sale of broadcast time for presentations of contro-

versial issues in favor of providing ‘‘significant op-

portunities’? for such discussions without charge to

proponents of various viewpoints through news and

information broadcasts. To sell time for presentations

on public issues, argues CBS, would result in the pre-

emption of the limited broadcast frequencies by those

with strong financial resources which would “‘neces-

sarily distort the manner in which issues were pre-

sented’? 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 in-

forming 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 are not permitted to become an instru-

ment of ‘partisan advocacy.’? The First Amend-

ment, CBS argues, is primarily concerned with the

right of the public to be informed—as opposed to the

right of the public to speak or to be heard.

2CBS asserts that it has served the public by presenting

issues and viewpoints within a balanced program schedule

utilizing newsworthiness as the sole criterion. CBS emphasizes

the growth of public affairs and news presentations during

1968-69 v. 1956-57—e.¢., 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 Vv.

130; and total hours of news documentaries 100 v. 37. In addi-

tion, CBS also presents a comprehensive 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.

—_—_

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

entation of views on controversial issues does not

apply to broadcasts on behalf of political candidates

or ballot propositions. This exclusion is based upon

CBS’ belief that the intent of Section 315 is to facili-

tate the discussion of political issues by legally quali-

fied candidates; such political broadcasts may include

a direct appeal for funds so long as CBS is not in-

volved in the collection or handling of such funds.

CBS also states its intention to permit the 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

candidates or ballot propositions.

11. With respect to the common carrier argument,

CBS states that such a policy would be contrary to

the public interest because partisan presentations

would diminish the time available for other news,

sports and entertainment programs and would result

in an “auction” to the highest bidder to determine

what issues will be discussed and how such discussion

will be conducted. Moreover, CBS queries, would the

broadcaster then be responsible for restoring the bal-

ance? How would a network choose among competing

bidders if not enough time were available for all?

What standard is to be used to determine “responsible

entities?” CBS argues that DNC’s proposal would

divest the licensee of responsibility for controversial

issue programming and would ultimately require the

Commission to make judgments as to the specific pro-

grams which are presented or rejected.

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

that DNC’s request is without constitutional or statu-

tory basis, that Commission compulsion to carry

DNC’s programs is barred by the Communications

Act, and that the action which DNC requests of the

55a

56a

Commission is contrary 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 facilities and that to

assert such a right would ultimately require the Com-

mission to assume the role of a censor or arbitor of

specific programs, contrary to its long-established

policy of avoiding such governmental involvement.

CBS asserts that the McIntire case‘ stands for the

proposition that “broadcasters, though licensed by the

Commission and subject to its valid regulations, are

not publicly owned facilities, and there is no First

Amendment right to purchase time on radio or televi-

sion stations.’’? CBS further asserts that nothing in

Red Lion® indicates that McIntire is no longer good

law or that, apart from Section 315, there is any legal

obligation for broadcast licensees to sell time. Rather

CBS says, Red Lion merely sustained long-standing

Commission policies which are wholly in consistent

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 pro-

gram selection. The right of personal reply to mate-

rial previously selected for broadcast is limited to

equal opportunity for political candidates, replies to

personal attacks and replies to station political en-

dorsements. CBS contends that the legislative history

of the Communications Act supports its assertion that

the statutory scheme envisions a system in which the

4 McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597 (3rd

Cir 1945) cert. den. 327 U.S. 779 (1946).

5 Red Lion Broadcasting Co., Inc., v. F.C.C., 395 U.S. 367

(1969).

57a

broadeaster is left with the initiative of assuring that

programs presented are in the public interest.

14. Finally, CBS asserts, DNC’s request is ‘‘fun-

damentally inconsistent” with the concept of licensee

responsibilities and specifically, contrary to the Com-

mission’s prior holdings that ‘‘the Commission has no

power to require a broadcaster to carry or refrain

from carrying any particular program, or to pre-

scribe 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

purchase of program time envisioned by DNC or the

solicitation of funds for the party during such a pro-

gram. DNC states that it is not clear whether NBC

would permit short spot announcements designed for

the solicitation of funds for a party, but this simply

points up the desirability of a concrete factual situa-

tion—namely, of DNC making a specific request, in-

stead of the general, more vague approach which it

has taken here.

DISCUSSION

Part I. The right of responsible entities to purchase

tume for comment on public issues

16. The DNC petition raises two separate questions:

(i) the asserted right of political parties to purchase

* To support this proposition, CBS also cites Mc/ntire v. Wm.

Penn Broadcasting Co., supra; 1949 Editorializing Report, 13

FCC 1246; 1960 Report and Statement of Policy in the En

Bane Programming Inquiry, 25 Fed. Reg. 7291 (August 3,

1960) ; and letter to Judy Collins, March 24, 1970.

56a

Commission is contrary 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 facilities and that to

assert such a right would ultimately require the Com-

mission to assume the role of a censor or arbitor of

specific programs, contrary to its long-established

policy of avoiding such governmental involvement.

CBS asserts that the McIntire case‘ stands for the

proposition that “broadeasters, though licensed by the

Commission and subject to its valid regulations, are

not publicly owned facilities, and there is no First

Amendment right to purchase time on radio or televi-

sion stations.’’ CBS further asserts that nothing in

Red Lion® indicates that McIntire is no longer good

law or that, apart from Section 315, there is any legal

obligation for broadcast licensees to sell time. Rather

CBS says, Red Lion merely sustained long-standing

Commission policies which are wholly in consistent

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 pro-

gram selection. The right of personal reply to mate-

rial previously selected for broadcast is limited to

equal opportunity for political candidates, replies to

personal attacks and replies to station political en-

dorsements. CBS contends that the legislative history

of the Communications Act supports its assertion that

the statutory scheme envisions a system in which the

* McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597 (ard

Cir 1945) cert. den. 327 U.S. 779 (1946).

5 Red Lion Broadcasting Co., Inc., v. F.C.C., 395 US. 367

(1969).

et ay ea Kip CW,

PERLE LEE DY 2EXS

57a

broadeaster is left with the initiative of assuring that

programs presented are in the public interest.

14. Finally, CBS asserts, DNC’s request is ‘‘fun-

damentally inconsistent” with the concept of licensee

responsibilities and specifically, contrary to the Com-

mission’s prior holdings that ‘‘the Commission has no

power to require a broadcaster to carry or refrain

from carrying any particular program, or to pre-

scribe 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

purchase of program time envisioned by DNC or the

solicitation of funds for the party during such a pro-

gram. DNC states that it is not clear whether NBC

would permit short spot announcements designed for

the solicitation of funds for a party, but this simply

points up the desirability of a concrete factual situa-

tion—namely, of DNC making a specific request, in-

stead 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

* To support this proposition, CBS also cites Mc/ntire v. Wm.

Penn Broadcasting Co., supra; 1949 Editorializing Report, 13

FCC 1246; 1960 Report and Statement of Policy in the En

Bane Programming Inquiry, 25 Fed. Reg. 7291 (August 3,

1960) ; and letter to Judy Collins, March 24, 1970.

———ay

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.

17. That question goes to the heart of the system

of broadcasting which has developed in this country—

ie., 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 posi-

tion, 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

poliry 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 (1943), and Red

Lion Broadcasting 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 expres-

sion, 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.)’ To resolve

= the chaotic situation which had resulted, Congress de-

4 creed 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 broad-

58a

™The Court recently reaffirmed this vital distinction in Red

Lion (supra, at 388): “Where there are substantially more in-

dividuals 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, ae

| 59a

caster must allocate programming among the several

categories (e.g., entertainment, instruction, news, pub-

he affairs) and, within those categories, must choose

among the many competing requests for air time. See

Report on Editorializing, 13 FCC 1246, 1247-48

(1949). However, there is one special obligation which

the Commission has stressed—that broadcasters must

... devote a reasonable percentage of their broadcast

time to the presentation of news and programs de-

voted to the consideration and discussion of public

issues of interest in the community served by the

particular station’’ (id. at p. 1249). Indeed, the Com-

mission has stressed that it has allocated so much spec-

trum space to broadcasting, basically because of the

great contribution which broadcasting can make to an

informed public opinion on the vital public issues of

the day. Ibid., Storer Broadcasting Co., 11 FCC 2d

678. It follows that the Commission can and must re-

quire the achievement of that allocation purpose by

its broadcast licensees. See Section 303(b); Red Lion

Broadcasting Co. Ine. v. F.C.C., supra at p. 394. In

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 com-

munity, obligated to give suitable time and attention

| to matters of great public concern.”

: 19. The Commission has consistently made clear

that with some exceptions not here pertinent, the li-

censee has discretion in discharging that obligation.

Thus, in its basic Editorializing Report, the Com-

mission stated:

It should be recognized that there can be no

one all-embracing formula which licensees can

hope to apply to insure the fair and balanced

presentation of all public issues. Different issues

will inevitably require different techniques of

452-787—7 1-6

presentation and production. The licensee will

in each instance be called upon to exercise his

best judgment and good -sense in determining

what subjects should be considered, the parti-

eular format of the programs to be devoted to

each subject, the different shades of opinion to

be presented, and the spokesmen for each point

of view. In determining whether to honor speci-

fic requests for time, the station will inevitably

be confronted with such questions as whether

the subject is worth considering, whether the

viewpoint of the requesting party has already

received a sufficient amount of broadcast time,

or whether there may not be other available

groups or individuals who might be more ap-

propriate 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; ef. 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 broad-

east facility.*

90. While the licensee thus has considerable dis-

eretion 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 basie considera-

tion in this respect is that the licensee eannot rule

off the air coverage of important issues or views be-

& Dowie A. Crittenden, 18 FOC 2d 499 (1969); Jlrs. Mar-

garet 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); .W/rs. Mad-

alyn Murray, 40 FCC 647 (1965). :

_—_

eause of his private ends or beliefs. As a publie trus-

tee, he must present representative community views

and voices on controversial issues which are of im-

portance to his listeners (Red Lion, su pra, 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 **pro-

found national commitment that debate on publie

issues should be uninhibited, robust, and wide-open.”’

New York Lines Co. v. Sullivan, 376 U.S. 254, 270

(1964) ; see’ also Red Lion Broadcasting Co. Ine. v.

F.C.C., 395 U.S. 367, 392 (n. 18) (1969); Storer

Broadcasting Co., 11 FCC 2d 678 ( 1968) ; Anti-Def-

amation League of B’nai B’rith, 9 FCC 2a 190, 191

(1966),, affirmed Anti-Defamation League v. 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 Editorial-

izing Report, supra, at p. 1249:

6la

It is this right of the public to be informed,

rather than any right on the part of the gov-

ernment, any broadeast licensee or any individ-

ual member of the public to broadcast his own

particular views on any matter, which is the

foundation stone of the American system of

broadcasting.

See Red Lion Broadcasting Co. Ine. vy. F.C.C., supra,

at p. 390:

It is the right of the public to receive suit-

able access to social, political, esthetic, moral

and other ideas and experiences which is eru-

cial here.

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

petition. That petition seeks ‘to overrule the above

policy and to require licensees to sell time to any re-

sponsible entity to comment on a public issue. Using

i... ae SDS ie a ee as be Ek Sa on ee

62a

the CBS response as an example, we note that it

would require a holding that CBS’ policy in this area

is inconsistent with the public interest, because al-

though it recognizes its obligation to devote a reason-

able amount of time to controversial issues of public

importance (and has submitted a showing of its in-

ereasing efforts in this respect, including during

prime time hours), and to do so fairly by providing

“|. significant opportunities for such [broadcast]

discussion without charge to partisans of various

viewpoints in [its] news and information broadeasts”’

(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 facili-

ties by ‘“‘responsible entities’? over and beyond the

fairness doctrine right of the public to be informed.

22. The DNC position—that the licensee, upon re-

quest, must sell time to any responsible entity for

comment on public issues—runs counter to the statu-

tory language and the legislative history. That history

shows that Congress specifically debated and rejected

the idea of the licensee being required to act as a

common carrier with respect to transmission of com-

ment on public issues. See Sen. Rep. No. 772, 69th

Cong., 1st Sess., p. 4; 67 Cong. Ree. 5560-5561, 12501-

12504. The Act reflects this. Section 3(h) states that a

broadeaster shall not be deemed a common carrier.

Section 315(a) sets out the pertinent statutory stand-

ard—that the licensee must operate in the public in-

terest and must afford reasonable opportunity for the

discussion of conflicting viewpoints on controversial

OR AE AES BONIRLG ce Prus REALL RE

_—_

issues of public importance. This language cannot be

squared with the DNC position; had Congress

adopted such a posotion, the statutory prescription

would have been entirely different (e.g., .. . “‘inelud-

ing the sale upon request of time to responsible enti-

ties 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 broadcasters under the

Communications Act of 1934” (H. Rep. No. 1609,

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

islative history shows, the principles set forth in the

basic Editortalizing Report. That this is the statutory

scheme is further shown by the consideration of the

second sentence of Section 315(a)—that “no obliga-

tion is hereby imposed upon any licensee to allow the

use of its station by any such candidate.” The purpose

of this provision is to make clear that the broad-

caster is not a common carrier as to political broad-

casts—that he may exercise discretion as to the time

to be afforded broadcasts by candidates. See Memo-

randum of F.C.C., Hearings before the House Sub-

committee of the Interstate and Foreign Commerce

Committee, 88th Cong., 1st Sess. on H.J. Res. 247,

pp. 84-90 (1963) (to the effect that while the licensee

has discretion, he cannot adopt a policy of not devot-

ing a reasonable amount of time to political broad-

casts). It would make no sense to hold that the licensee

has discretion whether or not to sell time for the most

important controversial issue programming of all—

the political broadcast by the candidate (see discus-

sion within as to the preferred position of such pro-

gramming), 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).

>... ETRE ESOP PRI APRIL TEES REET ED eT ene a cate

63a

—

23. The administrative and judicial precedents re-

flect the statutory scheme. The Commission’s pro-

nouncements are long established and consistent. See,

e.g., Report on Edttorializing, 13 F.C.C. 1246, 1249

(1949); 1960 Programming Statement; Women’s

Strike for Peace, November 22, 1965. The court cases

are to the same effect, McIntire 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,

001 (C.A. 1). DNC argues that these cases are no

longer relevant in light of the Court’s decision in Red

Inon, 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 Re-

port, supra, at pp. 14-17, 31-32, and the Court

recognized the report “asthe principal summary of

[the Commission’s] ratio decidendi in cases in this

area” (p. 1251). The Court at the outset noted “the

twofold duty” imposed by the Editorializing 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

Court’s decision is based, we believe, on this founda-

tion. The thrust of that decision is not that the broad-

64a

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

editorializing obligations differ from the general fairness re-

quirement that issues be presented, and presented with cover-

age of competing 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. Iv.

v. F.C.C., 395 U.S. at 378.

65a

east licensee 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 community views and voices on con-

troversial issues. The Court’s decision thus stresses

the right of the public to be informed—not the right

of the broadcaster or any individual or group to

speak over broadcast facilities. The private censor-

ship by broadcasters which the Court rules out is

that which would prevent the presentation of repre-

sentative community views or voices.

24. There ‘are strong policy arguments in support

of the Congressional scheme. We have noted that

broadeasting is inherently not open to all (para-

graph 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 situ-

ation 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 avail-

. able time slots for the discussion of a controversial

issue. Further, the publie’s agenda for discussion of

public issues would then be set substantively and

increasingly by the affluent—by the person or group

which ‘‘. . . has the financial resources and interest to

purchase sustained access to the mass communications

media...’ (Banzhaf v. F.C.C., 405 F.2d 1082

(C.A.D.C. 1968), cert. den., 396 U.S. 842). Since the

amount of broadcast time for discussion of contro-

versial 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

>... SERNA NRRL EMIT

66a

issue of the oil depletion allowance would impose the

birden to present reasonably the other viewpoint,

and in turn would inevitably cut down on the amount

o& time for discussion of other issues. But we believe

tiat such allocations of limited time are to be made

m the basis of the public interest—not that of any

jrivate group, however powerful or affluent. Further,

tie public trustee would lose control over the impor-

tint aspect of the manner in which the public is to

le informed. We recognize that in some instances

short spot announcements may serve a useful purpose

h this area (see infra, p. 17). But we have also

jointed up the limitations as to many issues of this

nanner of informing the public. See e.g., Hearings

lefore the Senate Commerce Committee, H.R. 6543

1969), pp. 142-143; Voters Time Rept., p. 15. A

leensee which reasonably made the judgment that an

Esue was too complex to be discussed in a 30-second

ommercial—that ‘‘Shawking” the issue like a soap did

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