Brief for the Respondent in Opposition — Columbia Broadcasting System, Inc. v. Democratic National Committee

Supreme Court brief1973

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Text

INDEX

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PORGIONE BELOW 5.6 6 oh ce 6 eee OH EE Re 1

COON 6 656 5 OS Oe EE E'S 2

CONSTITUTIONAL PROVISION INVOLVED .......... 2

QUESTIONS PRESENTED. .....- 222 ececcceees 2

OUATOMION, % 5 6 66 6 4 SOR HH EDS EHS 3

REASONS FOR DENYING THE WRIT. .........-...-.- 12

CONCLUSION. .... 22-0 eee eee ee eee eee ees 33

CITATIONS

Cases:

A. L. Melching Barge Lines, Inc. v. United States,

BE ee | er ee ee ee 21

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968)........

Ashwander v. Tennessee Valley Authority,

BOT US. FOS CIM) x 0k oe 6 ee ewe eee ees

Banzhaf v. Federal Communications Commission,

405 F.2d 1082 (D.C. Cir. 1968), cert. denied

sub nom Tobacco Institute v. Federal Com-

munications Commission, 396 U.S. 842 (1969)........

Cantwell v. Connecticut,

are SL: Oe CIO % & 5 6 ee oe eee ee eee

Columbia Broadcasting System v. United States,

OO We Me CE) bes eH bk oo oe Oe

Cox v. Louisiana,

FIO Ue SO UIOES) 6 5s eco Ke OK ee eee eee

Eccles v. Peoples Bank of Lakewood Village, Cal.,

ccc RE Ss a) ee ee er ee

: .

fale at RT cot RC aon

Edwards v. South Carolina,

Fowler v. Rhode Island,

eo et. ee a ee es ar a

Friends of the Earth v. Federal Communications

Commission, __ F.2d __ (D.C. Cir. No. 24,556,

pe | ee ee ae

Frozen Food Express v. United States,

Dal TER, WO CG 6c me cee eevee ces

Green v. F.C.C.,,

467 28 373 OX. Ge, 1971) 6 cc ee ec cine

Gregory v. City of Chicago,

oe) ee ee

Joint Anti-Fascist Refugee Committee v. McGrath,

> ee ee ee a ee eer

Lamont v. Postmaster General,

381 US. 301 (1965)...........-0 000 eee

Marsh v. Alcbama,

Dae Ties Se SI i 8 ee HRS

Martin v. City of Struthers, ;

pe Se ee er ee

Massachusetts Universalist Convention v. Hildreth

& Rogers Co., 183 F.2d 497 (ist Cir. 1950) ......

McIntire v. Wm. Penn Broadcasting Co.,

151 F.2d 597 (3rd Cir. 1945) cert. denied,

Me! Fae gk

NAACP vy. Button,

ge er

National Broadcasting Co. v. United States,

oy ee ae PS ee are ee

Near v. Minnesota,

Ber UR OE CI) cc bk ce ee eee hee te wees

ik) a: a 17, 28

roy

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) acre Fereesrecsarnes 6, 9, 15>

Niemotko v. Maryland,

S00 UE. 268 (99S) ccc cc cee eee eee ceees 9

Office of Communications of United Church of

Christ v. Federal Communications Commission,

425 F.2d $43 (D.C. Cis. 1969). 2. cc ccc cre ccvee 15

Parker v. County of Los Angeles,

BS GR. B27 CIO) oc ce eee HE. 21

Pierce v. Society of Sisters,

- ae Bs | er ee ee 20

Public Affairs Associates, Inc. v. Rickover,

pt a ee ee ee 22, 27

Red Lion Broadcasting Co., Inc. v. Federal

Communications Commission, 395 U.S. 367

to oe ee ee ee a 6, 9, 10, 13,

14, 17, 28, 29, 32

Rescue Army v. Municipal Court,

og! Me 2 er ee ee ee 21

Retail Store Employees Union, Local 880 v.

Federal Communications Commission,

a ee ee re 31

' Simmons v. West Haven Housing Authority,

399 U.S. 510 (1970), rehearing denied,

ok! ee: Oe ee ee a 21

Stanley v. Georgia,

ee | a ee 14

Tinker v. Des Moines School District, i

oe ee en rr, Se 9

Toilet Goods Association v. Gardner,

ee Th Ge AUP) 6 6 ok 0 8 ee PKA HO 22, 27

United States v. International Union, etc.,

See Be Dr AIO) 4 6 eH 8 Ow oe ee wR 19, 21

(iv)

United States v. Lovett,

SOB US. SUB CIGD) ca 56k 8 ee gts oe et Baws

Valentine v. Chrestensen,

Sie UR: SF CID an 6 vos ee as ORES OSs

Administrative Decisions:

The Committee of One Million,

F.C.C. 71-1096 (October 22, 1971) ..........2.2.2..

Cullman Broadcasting Co.,

40 POL. - SHE (99GS) 5 8 6 8h ewe we hee ees ds

Letter to National Broadcasting Co.,

30 F.C.C. 2d 643 (F.C.C. 71-704,

eB) een ee a ae er

Wilderness Society, et al,

F.C.C. Memorandum Opinion and Order

Nw. TES71 (Sent. 17, ISTP. 2 ccc cee were ewes

Statutes:

United States Constitution, First Amendment .. . 2, 3, 6, 9, 10,

14, 15, 18, 20, 27,

31, 32

Communications Act of 1934, 48 Stat. 1064,

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

I IN 66 ES ee Cae sw 6,27

OG D6 k6-% 6.5 SS ODER MS. 2 ERS 4, 21

DO BOT 635 6% 0%. Oe 6 ba a EE 4

DO SOO « & *.< 64-6. So 6 TANNER

PUNND 51S <5. 6-8 ee OEE EROS SESS ae ee

OB TEER. Been IF bs. 6 6 GRR Ce 2

(v)

Miscellaneous:

Brief of Business Executives’ Move for a Vietnam

Peace, No. 24492 (D.C. Cir)... 2... ee 3

Fairness Primer: Applicability of the Fairness

Doctrine to the Handling of Controversial

Issues of Public Importance, 29 Fed. Reg.

10415, 40 F.C.C. 598 (1964) .. 2... ee ee 24, 30

Network Programming Inquiry,

25 Fed. Reg. 7291 (1960). ..........0 ccc eee 4

Primer on Ascertainment of Community Problems

by Broadcast Applicants, 36 Fed. Reg. 4092,

27 FC.C.2d 650 (1971)... 0. 2 eee ee ec 4

Report on Editorializing by Broadcast Licensees,

13 F.C.C. 1246 (1949)... 2 ee ee 30

Study of Fairness Doctrine,

36 Fed. Reg. 11825, 30 F.C.C. 2d 26

ONT Se eR oa ware a ee as 7, 11, 16, 17, 20,

a, day ad, oe, 28,

26, 27

vine

rath

He 3

pgUye

te ea

Fay :

eat

i ves

hi!

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1971

Nos. 71-864, 71-863, 71-865, 71-866

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA, et al.,

Petitioners,

Vv.

BUSINESS EXECUTIVES’ MOVE FOR VIETNAM PEACE

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA, et ai.,

Petitioners,

Vv.

DEMOCRATIC NATIONAL COMMITTEE.

BRIEF IN OPPOSITION TO PETITIONS

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF. APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

OPINIONS BELOW

The Opinion of the court of appeals is not yet officially

reported. The opinions of the Federal Communications

Commission are reported at 25 F.C.C. 2d 242 and 25 F.C.C.

2d 216. These opinions are set out in their entirety in Ap-

Pendices A, B, and C, respectively, to the Petition for Certio-

Tari filed in No. 71-864.

—y

JURISDICTION

The judgment of the court of appeals was entered on

August 3, 1971 and reissued on October 29, 1971. Peti-

tions for rehearing and rehearing en banc were denied by

the court of appeals on October 4, 1971. Petitioner in-

voke this Court’s jurisdiction under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the United States Constitution

provides in relevant part:

Congress shall make no law . . . abridging the

freedom of speech.

QUESTIONS PRESENTED

Whether (1) a decision of the U. S. Court of Appeals

for the District of Columbia Circuit which set aside on

First Amendment grounds a flat ban by broadcasters

against selling any of their advertising time to persons

wishing to speak about controversial issues of public im-

portance and remanded to the Federal Communications

Commission for further study and the formulation of

reasonable guidelines is, in the total absence of evidence

in the record to support any of petitioners’ arguments,

ripe for review by this Court and (2) whether any conflict

among the Circuits exists which might warrant review by

this Court.

Respondent, Business Executives’ Move for Vietnam

Peace, suggests that both questions should be answered

in the negative and certiorari be denied.

STATEMENT

Washington, D. C. radio station WTOP holds out for

sale to advertisers 18 of the 60 minutes in every hour it

is on the air. Among the advertisements carried on November

13, 1970, for example, were a 75-second commercial for

Bryce Mountain Land Development;! a 60-second adver-

tisement for Manischevitz Wines;? and a 60-second com-

mercial for Dr. Scholl’s Foot Deodorant.2 Yet, WTOP

refused to sell respondent Business Executives’ Move for

Vietnam Peace, BEM, any time to broadcast a 60-second

spot announcement presenting the views of prominent

American industrial and military leaders opposing the Viet-

nam war:

[I]t is the policy of [WTOP] radio and tele-

vision stations not to sell spot announcement

time to individuals or groups in order to set

forth a point of view on any controversial

subject of public importance. (Joint Appen-

dix in the Court of Appeals at 7.)

BEM asserted before the Federal Communications Com-

mission (hereafter ‘the Commission’) that WTOP’s flat

ban on selling spot announcement time for controversial

speech contravened the First Amendment. BEM made no

claim with respect to the remaining 42 minutes per hour

that WTOP reserves for presenting its own programming

and views as it sees fit, subject only to loosely defined

I Brief of Business Executives’ Move for Vietnam Peace App. C

at 2.

2 Id., p. 3.

3 Id. p. 8.

CESS

responsibilities to program in the “public interest”,4 “to

afford reasonable opportunity for the discussion of con-

flicting views on issues of public importance”> and other

broadly phrased responsibilities.© BEM makes no effort

to alter, abridge, amend or otherwise affect any of these

programming time rights and obligations of licensees.’ All

that is before this Court then is the 18 minutes per hour

which WTOP makes available for sale to advertisers to soli-

cit in their own words and format customers for goods

and services.

4 Communications Act of 1934, Sections 307, 309, as amended,

47 U.S.C. $307, 309.

5 Communications Act of 1934, Section 315(a), 48 Stat. 1088,

as amended, 73 Stat. 557, 47 U.S.C. §315(a). This obligation and

the body of law surrounding it is generally known as the “fairness

doctrine.”

' 6 See Primer on Ascertainment of Community Problems by Broad-

cast Applicants, 27 F.C.C. 2d 650 (1971); Network Programming

Inquiry, 25 Fed. Reg. 7291 (1960).

7 BEM did assert an alternative theory before the Commission —

i.e., that its advertisements were entitled to be aired under the fair-

ness doctrine. This claim was denied by the Commission. See Peti-

tion for Certiorari in No. 71-864 (hereinafter cited “Pet.’’) filed by

the Solicitor General on behalf of the United States and the Federal

Communications Commission, App. C, 91a-101a.

The Petition of the United States and the Commission (No. 71-

864) seeks a writ of certiorari in both DNC and BEM. Post-News-

week Stations, Capital Area, Inc., licensee of WTOP (hereinafter re-

ferred to as “Post” or “WTOP”’), also seeks certiorari in BEM. (No.

71-865.) (Its Petition is hereinafter cited “Post Pet.”) Columbia

Broadcasting System, Inc. (hereinafter referred to as “CBS”) (No. 71-

863) and American Broadcasting Companies, Inc. (hereinafter referred

to as “ABC”) (No. 71-866) have each filed a Petition for Certiorari in

DNC. (Hereinafter these Petitions are cited “CBS Pet.”’ and “ABC Pet.”,

(continued)

While BEM’s complaint was pending, the Democratic Na-

tional Committee (DNC) sought 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 solicitation of funds and for comment on

public issues.”® DNC complained of no individual refusal

to sell it time, rather it sought a general ruling.

The Commission ruled against both BEM and DNC on

the same day in separate but cross-referenced opinions.

(Pet. App. B and App. C.) Although there was no evi-

dence of any harm to WTOP if it carried BEM’s editorial

advertisements — indeed WTOP never asserted it would suf-

fer any injury by carrying them — the Commission sustained

WTOP’s flat ban on controversial short editorial advertise-

ments. It stated that a licensee’s obligations under the

fairness doctrine? “to present representative community

7 (continued) respectively.) Although BEM is not a respondent

in the last mentioned proceedings (Nos. 71-863 and 71-866), this

Brief in Opposition is directed to all Petitions since the court below

issued one inseparable decision in both DNC and BEM.

8 Initially DNC seemed to be requesting a declaratory ruling cover-

ing both program length time segments and spot advertising time.

But the Commission and the Court of Appeals treated it as dealing

with spot advertisements only. See text following this note. There-

fore as noted in the text, supra, all that is before the Court is the

advertising time held out for sale to the public by broadcasters.

It should also be noted that the ruling requested by DNC did

not deal with paid political ads on behalf of political candidates or

in support of ballot propositions. These paid ads are widely accepted,

but only during election campaigns. Cf Communications Act of 1934,

Section 315(a), as amended, 47 U.S.C. §315.

9 Pet, 6.

——

views on controversial issues . . .”!® was adequate under

both the public interest standard and the First Amend-

ment! to implement our “‘profound national commit-

ment that debate on public issues should be uninhibited,

robust, and wide open.’”!2_ The Commission noted that

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

Stat. 1064, as amended, 47 U.S.C. §153(h), declares that

broadcasters are not “common carriers.”’ It implied that

to require any broadcaster to sell some of its spot adver-

tisement time to someone at sometime might be inimical

to this provision. '

In DNC, the Commission employed essentially the same

grounds for refusing to rule that broadcasters must aban-

don flat bans on the sale of time to responsible entities

seeking to comment on controversial issues. Although

DNC’s request for a declaratory ruling of a general nature

clearly invited a far reaching inquiry in which the Com-

mission could gather relevant facts as to existing practices

in the industry and the possible effects of such a ruling,

the Commission acted without the benefit of such pro-

ceeding.

10 Pet., App. C, p. 101a, quoting Red Lion Broadcasting Co. v.

F.C.C., 395 U.S. 367, 394 (1969).

11 Pet. App. B, pp. 68a-69a, 928.

12 Pet., App. B, p. 61a quoting New York Times v. Sullivan, 376

U.S. 254, 270 (1964).

13 See Pet. App. C, p. 100a-101a. The Commission relied on its rea-

soning in Democratic National Committee. See text following this note.

14 The Commission did, however, hold that it would be arbitrary and

contrary to the public interest for a licensee to refuse to sell time to the

DNC or other significant political parties for the purposes of soliciting

funds. Pet., App. B, pp. 72a-75a. No party below sought review of this

determination and its rectitude is not before this Court.

BEM and DNC each filed a petition for review in the

United States Court of Appeals for the District of Columbia

Circuit. After briefing and argument in both DNC and

BEM, but over seven weeks before issuance of the Court of

Appeals’ decision, the Commission initiated a general inquiry

into the fairness doctrine.'5 Eyen though the Commission’s

BEM and DNC decisions stood at the time the general in-

quiry was launched, one aspect of this overall review was

directed to a determination whether and under what con-

ditions a limited right of individual access of the sort sought

by BEM could and should be exercised © (this aspect is

hereinafter referred to as “the Inquiry”). Because of its

direct pertinence to the issues raised by petitioners, we quote

the Inquiry in full:

ACCESS GENERALLY TO THE BROADCAST

MEDIA FOR THE DISCUSSION OF

PUBLIC ISSUES

19. It has also been urged that, quite aside

from the fairness obligation of broadcasters, there

is a right of access — at least on a paid basis —

for all those wishing to express a viewpoint on

a controversial public issue. The Commission

has rejected this blanket claim on the ground

that there is neither Constitutional nor statutory

right for any individual or group to present their

views, and that as a matter of policy it would

not serve the public interest to act as if there

were. See, e.g., the Democratic National Com-

mittee ruling, 25 FCC 2d 216 (1970), appeal

'S Study of Faimess Doctrine, 30 FCC. 24 26, 36 Fed. Reg.

11825 (1971).

16 ig. at 33.

; i...

pending, Democratic National Committee v.

F.C.C., Case No. 24,537, C.A.D.C.; Business

Executives’ Move for Vietnam Peace v. F.C.C.,

Case No. 24,942, C.A.D.C. The legal issues

are thus before the Court, and the policy is- |

sues are sharply pointed up in the majority Qa

and minority opinions of the Commission.

We request comment on the question whether

there is any feasible method of providing access

for discussion of public issues outside the re-

quirements of the fairness doctrine. More

specifically, we ask that comment be addressed

to the differing problems raised by paid and

free time; the specific standards that should be

followed for determining the basis on which

time is to be provided, if such a course is re-

commended; the effect of any such new proce-

dure on the licensee’s general responsibility to

the public; and the impact of such procedure

on the licensee’s duties under the fairness doc-

trine. The essential purpose of this part of the

inquiry is to ascertain, if possible, the general

patterns of licensee practice as to access on a

paid or sustaining basis (e.g., for discussion of

controversial issues generally or of ballot issues;

for fund solicitation generally or for parties or

committees organized around ballot issues), and

whether it would be appropriate for this Com-

mission to lay down criteria or guidelines for

these purposes. If so, what would they be?

Or, are the problems in this area so varied that

decisions should be left to the judgment of thou-

sands of licensees and, in cases of complaint,

to the adjudicatory process? Jn other words:

Breed

cpemmmmenamnmpneecnnscos: ON EN

should we reaffirm present Commission policy

and practice? (Inquiry, supra, 30 F.C.C. 2d

at 33 (emphasis added).)

On August 3, 1971, the court of appeals issued a single

opinion reversing the Commission’s orders in both BEM

and DNC. Relying on New York Times Co. v. Sullivan,

supra, Judge Wright, writing for himself and Judge Robin-

son!” stated that editorial advertisements are an important

form of speech.'® This Court has repeatedly stressed that

such forms of expression must, under the First Amend-

ment, be afforded access to speech forums.!9 An “un-

broken line of authority” has held that once the operators

of such forums have opened them to speech, they may not

discriminatorily bar controversial speech, 2!

In the face of these precedents, the court struck down

the flat ban policy under challenge. It left undisturbed all

17 Judge McGowan dissented.

18 Pet., App. A, pp. 28a-29a.

19 E.g., Tinker v. Des Moines School District, 393 U.S. 503 (1 969)

(public schools); Amalgamated Food E, mployees Union Local 590 y.

Logan Valley Plaza, Inc., 391 US. 308 (1968) (privately owned shopping

center); Cox v. Louisiana, 379 U.S. 536 (1965) (state capitol grounds);

Marsh v, Alabama, 326 U.S. 501 (1946) (company town). The court be-

low relied on Red Lion, supra, and inter alia, on these cases to establish

that state action standards could be applied to broadcasters in the First

Amendment area.

20 See Pet., App. A, pp. 30a-31a.

21 See cases cited at ibid. See Cox y. Louisiana, supra; Fowler v. Rhode

Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S. 268 (1951).

ie... OOD LEO REI DEEN TIL CALL LY TS PE PRES RH eS a, RETA EMG Rg Ik. at ay

other aspects of the regulatory scheme.” Indeed, becaus

this case came to the court below from an administrative

agency charged with primary regulatory responsibilities in

this area, an agency which may draw upon its own exper

tise and that of its licensees, the court did not order that

BEM’s, DNC’s or any other specific group’s advertisements

must be accepted by any broadcaster. Rather it confined

itself

to invalidating the flat ban alone, leaving it up

to the licensees and the Commission to develop

and administer reasonable procedures and regu-

lations determining which and how many “edi-

torial advertisements” will be put on the air.

(Pet., App. A, p. 3a.)

It directed only that /

{[o]n remand, the Commission should develop

reasonable regulatory guidelines to deal with

editorial advertisements. (Pet., App. A, p.

44a.)

The court took note of another reason for proceeding

with caution: there are the severe limitations on broadcast

time”? which make it “idle to posit an unabridgeable

First Amendment right to broadcast” ™ in a medium that

“inherently is not available to all.’ The court therefore

made clear that any right of paid access to the broadcast

af These include the fairness doctrine, a licensee’s obligations to

consult with community leaders, to provide programming of differ-

ént types, etc.

23 Pet., App. A, p. 37a.

24 Red Lion, supra at 388.

25 National Broadcasting Co. v. United States, 319 U.S. 190 226

(1943).

media must be a “reasonably regulated ‘abridgeable’” © or

“limited” right to speak. 27

On Petitions for Rehearing and Suggestion for Rehearing

en Banc, the full court, without dissent, denied the request

for en banc rehearing and the petition for rehearing was

denied by Judges Wright, Robinson and McGowan without

dissent. The petitioners now seek to have this Court issue

a writ of certiorari to review the judgment of the court

of appeals.

At the time the petitions for certiorari were filed, the

Solicitor General, 7® with the support of the broadcaster-

petitioners, sought a stay. In the Application for Stay,

the Solicitor General informed the Court that the Com-

mission has suspended the “Access Generally To The Broad-

cast Media For The Discussion of Public Issues” phase of

the Study of Fairness Doctrine proceeding — i.e., the In-

quiry (Application for Stay, p. 4.). Other than to note

that certiorari is being sought, neither the Solicitor Gen-

eral nor the Commission has articulated any reason why

the Inquiry, which was deemed necessary prior to the

_ decision of the court of appeals, is less pressing now.

By order of this Court dated January 24, 1972, the stay

was denied as follows: “The application for a stay pre-

sented to the Chief Justice, and by him referred to the

Court, is denied.”

26 Pet., App. A, p. 22a.

27 14, p. 8a. (Emphasis in original.)

28 As counsel for both the United States of America and the

Commission.

REASONS FOR DENYING THE WRIT

I. PRELIMINARY ANALYSIS OF COURT OF

APPEALS’ DECISION

At the outset, it is useful to. make clear what was and

what was not held by the court below:

The . . . issue before us is relatively narrow and

we decide it narrowly. We do not have to cut

to the “heart” of our system of broadcasting;

we leave undisturbed the licensee’s basic right to

exercise judgment and control in public issue

programming and the sale of advertising time.

All we do is forbid an extreme”? form of con-

trol which totally excludes controversial public

debate from broadcast advertising time.

We hold specifically that a flat ban on paid pub-

lic issue announcements is in violation of the

First Amendment, at least when other sorts of

paid announcements are accepted. We do not

hold, however, tHat the planned announcements |

of the petitioners — or, for that matter, of any

other 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 rea-

sonable procedures and regulations determining

which and how many ‘editorial advertisements’

will be put on the air. Pet., App. A, p. 3a.

(Emphasis added, except as noted.)

29 Emphasis in original, this footnote added.

EO LET BI ee ee ee NE EE EE

The court. specifically did not order any broadcaster to

put anyone in particular, not even BEM, on the air. Ra-

ther, it clearly refused to treat broadcasters as common

carriers relegated to selling their air time to all comers;

it did not even require any broadcaster to accept any

particular editorial advertisement, much less every one

proffered” and it made clear that, at this point, it leaves

“up to the licensees and the Commission” the working out

of a reasonable approach to selling some spot advertising

time to persons wishing to speak on matters of public con-

troversy.

The fairness doctrine, which was upheld by this Court

in Red Lion, is not in any way affected by the court of

appeals’ decision; the Commission’s and its licensees’ dis-

cretion as to application and administration of that doc-

trine remain unaltered.

In contrast to petitioners’ repeated arguments that the

result reached by the court below is inconsistent, at odds

with, or otherwise in conflict with this Court’s Red Lion

decision, *! the court below went to great lengths to

30 Thus, petitioners’ repeated citations of Red Lion, National

Broadcasting Co. v. United States, 319 U.S. 190 (1943), Green

v. F.C.C., 447 F.2d 323 (D.C. Cir., 1971), and other cases for the

proposition that no single person has an absolute right to express

his views on radio or television address an issue not present in this

case. Those decisions are not in any way inconsistent with the rul-

ing below. Indeed, as noted supra, see p. 10, the court below was excep-

tionally sensitive to the time limitations and other problems faced by

broadcasters as well as the regulatory obligations of the Commission and

therefore articulated “a reasonably regulated, ‘abridgeable’ right to

speak” (Pet., App. A, p. 22). .

31 See, e.g., Pet. 11, 12; CBS Pet. 11, 13; Post Pet. 9 (“The

lower court’s decision stands Red Lion on its head.”); ABC Pet. 5,

emphasize that its result was consistent with the spirit of

Red Lion:

The Red Lion Court itself stated specifically

that “[i]t is the purpose of the First Amend-

ment to preserve an uninhibited marketplace

of ideas [in the broadcast media].”>? (Pet.,

App. A, at 21a.)

The court below stressed that this Court in Red Lion,

while upholding the fairness doctrine as constitutionally per-

missible and consistent with First Amendment objectives, in

no way suggested, let alone held, that the fairness doctrine

exhausts all of the broadcaster’s obligations or protects all

of the public’s First Amendment rights regarding the broad-

cast media:

Surely the public’s interest in free access to the

full spectrum of ideas and controversial views

on radio and television is highly important. The

right to receive ideas and information is deeply

rooted in First Amendment law.% The Red .

Lion Court stressed that right, since it was the

one primarily relevant to the fairness doctrine

rules at issue in the case. But we do not be-

lieve that the Red Lion decision makes the

goal of an informed public the exclusive First

32 Footnote 29 to opinion: “395 U.S. at 390. (Emphasis added.)”

33 Footnote 28 to opinion: “See Stanley v. Georgia, 394 U.S.

557, 564 (1969); Lamont v. Postmaster General, 381 U.S. 301, 307-

308 (1965) (Mr. Justice Brennan, concurring); Martin v. City of

Struthers, 319 U.S. 141, 143 (1943). The right to receive, how-

ever, has not been considered the central First Amendment interest,

and never the only First Amendment interest.”

Amendment interest constraining broadcasters.

Certainly the Supreme Court has done so in

no other context. (Pet., App. A, at 21a.)

All that the court held is that where a preferred form

of speech* is at stake, the First Amendment requires that

the Commission must “cease abdicating responsibility over

the uses of advertising time” (App. A., p. 2a) to the sole

and unfettered discretion of its licensees.

In short, the court has merely asked the Commission to

develop guidelines to assure that the free speech rights and

interests of the public are not unreasonably foreclosed. As

for broadcasters, they simply have been instructed to exer-

cise their professional competence and judgment to assure

that some members of the public at some time have some

opportunity to purchase access to some portion of the air-

waves that that same public owns for presenting some of

its views On some controversial issues of the day.

In sum, ‘the court below merely suggested that broad-

casters must make reasonable efforts in the selling of ad-

vertising time to behave like the able and benign “trustees”

of a highly valuable public resource that they should be 35

and claim to be.

34 New York Times v. Sullivan, supra, and Valentine v. Chresten-

en, 316 U.S. 52, 54 (1942).

$9 See Pet. at 10-11. See also Office of Communications of United

Church of Christ v. F.C.C., 425 F.2d 543, 548 (D.C. Cir., (1969), empha-

szing that broadcasters are “‘fiduciaries .. . of a great public resource and

nust meet the higher standards which are embraced in the public interest

concept.”

36 See, e.g., Pet., op. cit.; CBS Pet. 6, 15.

Il. THE CASE AND ISSUES INVOLVED ARE

NOT RIPE FOR REVIEW IN THIS COURT

Summary

The court below made clear that its decision is consti-

tutionally grounded, specifically in the First Amendment.”

All petitioners argue that this case presents questions of

major constitutional import. While we do not deny that

imbedded within the court of appeals’ decision may lie

major constitutional questions ** that might be appropriate

for review by this Court if presented in a context which

would permit this Court an opportunity to thoroughly

analyze their implications to the nation’s broadcasting in-

dustry and the public, this is not such a case.

There is no factual record whatever in support of any

of the assertions of disruption of orderly broadcasting or

financial injury made by petitioners. *

37 Pet., App. A., p. 10a.

38 A few possible problems which might arise in implementing a

paid editorial access scheme (when one is formulated by the Com-

mission), could include censorship of content or format of editorial

advertisements by licensees or, on the other hand, impairment of a

licensee’s role as journalist (see fn. 44, infra, and accompanying text)

as a result of the nature or number of editorial advertisements he

must carry.

39 The declaratory ruling sought by DNC gave the Commission a

clear opportunity to develop a factual record on these and the other

issues raised by petitioners, before issuing its decision. It eschewed

this course of action but, as noted above, acknowledged the need

for such an evidentiary approach to the problems raised in this case

by initiating its Inquiry on June 12, 1971. i 7-9, supra.

Nor is there any evidence before this Court concerning

the possible burdens the Commission might suffer if forced

to implement the mandate of the court below, which, in

effect, simply requires the Commission to continue the In-

quiry it had itself begun and which leaves the Commission

almost unfettered discretion to work out rules in which it

could protect itself and the courts from a plethora of liti-

gation. *! :

Nor is there any agency rule or regulation before this

Court, let alone one based upon a thorough analysis of

the factual and legal parameters. Cf. Red Lion, supra.

In short, the record presented to this Court is bare.

Furthermore, both the Commission and the broadcasters

have been afforded wide latitude to hammer out a fair

and reasonable approach to editorial advertising. Under

these circumstances, it is premature for the Court to grapple

with the constitutional principles underlying the decision

below. The case is not ripe for review.

40 it should be noted that mere inconvenience to or burden on

a governmental body, unless it is demonstrably severe, both quanti-

tatively and qualitatively, has never been regarded as a permissible

ground for denying First Amendment protected rights. See, e.g.,

Gregory v. City of Chicago, 394 US. 111 (1969) and Edwards v.

South Carolina, 372 U.S. 229 (1963). It is especially ironic to hear

a regulatory agency like the Commission seek to be relieved of its

statutory obligations on the ground that enforcing First Amendment

tights may prove a burdensome task.

41 it should be noted that the Commission concedes that its In-

quiry might well reach a result “similar to that ordered by the Court

of Appeals ... .” (Pet. 15).

>... TS RELENTLESS FI ARAN IEA NITS , 3 OER RAR ia aot Sr neg 3 aC om ange

—y

Discussion

The decision below does not alter broadcaster control

over programming time.42 Nevertheless, the broadcaster

petitioners argue that if they are required to provide the

public with limited paid access they will be deprived, in

part because of the fairness doctrine, 43 of some control

over issue origination and speaker format and language. “

Moreover, petitioners express concern that under the Com-

mission’s Cullman * doctrine, the licensee might incur an

42 As the court below stated: “It is particularly important that these

cases deal only with the public’s First Amendment interests in broad-

casters’ allocation of advertising time. They deal only with time relin-

_quished by broadcasters to others.... In normal programming time,

closely controlled and edited by. broadcasters. . . . the broadcasters’ own

interests in free speech are very, very strong. [Footnote omitted.] The

Commission’s fairness doctrine properly leaves licensees broad leeway for

professional judgment in that area. But in the allocation of advertising

time, the broadcasters{’| . . . 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,”’ Pet., App. A, pp. 19a-20a (emphasis added).

43 The fairness doctrine imposes a two-fold obligation on licensees.

First, they must air views on some controversial issues of their own choos-

ing. Second, the views they present as to those issues must be balanced.

See Pet. at 6. Cf. Brief for Respondents United States of America and

Federal Communications Commission, below, at pp. 12-13: “. . . licensees

have a general obligation to devote a reasonable portion of broadcast

time to the discussion of controversial issues of public importance, and

in doing so, to be fair, i.e., to affirmatively present contrasting viewpoints

held by responsible elements in the community.”

44 ABC Pet. 12; CBS Pet. 15; Post Pet. 10.

45 Cullman Broadcasting Co., 40 F.C.C. 576 (1963). Cullman requires

a broadcaster to present contrasting viewpoints at its own expense if paid

sponsorship is unavailable. - There is of course no direct economic threat

from any access accorded groups as a result of the decision below. The

decision deals only with the right to purchase spot announcement time;

ABC’s implications to the contrary (ABC Pet. at 9-10) are wrong. See

opinion below (App. 3a) quoted, supra, at p. 12.

ep tres

eptte

CARS

_ geal

economic burden in meeting fairness doctrine obligations.

Petitioners also warn that the national agenda of public

issues which reach the airwaves may be unduly influenced

by an invalid factor — i.e., the wealth required to purchase

editorial advertising time.“ Finally, petitioners raise the

related spectres of ‘administrative apocalypse” 4” and omi-

nous governmental censorship through agency and court re-

view of licensee decisions. ®

At some point there may arise a real and documentable

cause for concern that even a limited system of paid ac-

cess might result in one or more of the dangers so strenu-

ously argued by petitioners. But at this time the dangers

are pure speculation’? and sound principles of constitu-

tional adjudication, which are designed to ensure that any

judgment of this Court be both necessary and fully in-

formed, inveigh against Supreme Court review of this

case.

46 Pet. 17, ABC Pet. 11-12, 15-16; CBS Pet. 15; WTOP Pet. 10.

47 Pet., App. A, p. 40a.

48 Pet. 11, 17; ABC Pet. 12-13; WTOP Pet. 10-11; CBS Pet. 16

17.

49 E.g., WTOP cites a total of three demands for time — one of

which (The Committee of One Million, F.C.C. 71-1096 (October 22,

1971)) involved an attempt to purchase a program length segment,

not a spot ad — as proving “‘it is only realistic to expect that de-

mands for editorial advertising time will be numerous and wide-

spread.” (WTOP Pet. 16, n. 16.)

50 See United States v. International Union, etc., 352 U.S. 567 (1952)

(Frankfurter); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123 (1951) (Frankfurter concurring); United States v. Lovett, 328 U.S.

303 (1946) (Frankfurter concurring); Ashwander v. Tennessee Valley

Authority, 297 U.S. 288 (1936) (Brandeis concurring).

ate vF PR Pere +e %,

This Court refuses to involve itself “‘where administrative

intention is expressed but has not yet come to fruition... .”5!

This Court’s policy clearly is to rule on the legality of a

regulation before it is put into effect only where the chal-

lenged regulation specifically details prescribed or proscribed

conduct and leaves the implementing agency no leeway in

its enforcement.*5* Only in this way can the true agency

position be ascertained and properly analyzed.

Here, not only is there no rule or regulation before the

Court, but the Commission, both in failing to build a rec-

ord before disposing of DNC’s request for declaratory rul-

ing and in initiating and then staying its Inquiry (see p.

11, supra) has taken every step possible to delay the de-

velopment of the rules or regulations regarding paid edi-

torial advertising which both it (Pet. 15.) and the court

below believe are required.

What this Court is asked to review is a remand to the

Commission to explore, in light of First Amendment con-

siderations, the adoption of rules that Agency was already con-

sidering adopting. This Court is asked to resolve a vital First

Amendment issueé.in a vacuum, where all that is before it

is a remand intended to lead to rules which themselves

can (and assuredly will) be the subject of judicial review.

The Commission and the licensees ask this Court to relieve

them of the burden of compliance with their responsibility

under the Communications Act to exercise their expertise

51 Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S.

426, 434 (1948).

Frozen Food Express v. United States, 351 U.S. 40 (1956);

Columbia Broadcasting System v. United States, 316 U.S. 407 (1942);

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

to develop workable rules for securing “the more effective

use of radio.”*3 The Commission, while professing that

its policy role has been usurped and that the court below

impermissibly intruded into its zone of expertise, now asks

this Court to declare it unnecessary for the Commission to

exercise its policy responsibility to apply that expertise in

its own Inquiry. 4

In similar situations this Court has held that “sound

discretion withholds the remedy where . . . at the moment

adjudication is sought, [the challenged practice is] under-

going significant modification so that its ultimate form can-

not be confidently predicted.” *5 Where constitutional ad-

judication is involved, this discretion becomes a “reluctance,

indeed refusal, to undertake the most important and most

delicate of the Court’s functions . . . until necessity com-

pels it. . .”.% This Court will undertake constitutional

adjudication only in a “concrete factual setting that sharpens

the deliberative process especially demanded for a Constitu-

tional decision.” *” All of these principles make the instant

matter plainly inappropriate for review by this Court on the

record before it.

53 Communications Act of 1934, Section 301, Stat. 47 U.S.C.

§301. :

+4 See Pet., pp. 10, 12; see also Pet. in No. 71-865, pp. 18-19.

35 A. L. Melching Barge Lines, Inc. v. United States, 368 U.S.

324, 331 (1961).

56 Rescue Army v. Municipal Court, 331 US. 549, 570 (1947).

*7 United States v. International Union, etc., 352 US. 567, 591

(1957). See also Parker v. County of Los Angeles, 338 U.S. 327 (1949),

Simmons v. West Haven Housing Authority, 399 U.S. 510 (1970), rehear-

ing denied, 400 U.S. 856 (1970).

On the slender record in this case there is no basis whatever

on which to determine at what point, if any, any of the

speculative dangers advanced by petitioners will arise to the

level of reality.°® In Toilet Goods Association v. Gard-

ner, 387 U.S. 158, 163-4 (1967) this Court stated that its

determination of the legality of a Food and Drug Admin-

istration regulation requifed “not merely ... an inquiry

into statutory purpose, but concurrently . . . an under-

standing of what type of enforcement problems are en-

countered by the FDA, the need for various sorts of super-

vision in order to effectuate the goals of the Act, and the

safeguards devised to protect legitimate trade secrets.” It

is plain that, on the record in the instant case, this Court

could not possibly reach such an understanding of the

regulatory problems which are hypothesized by petitioners.

Where questions of “‘far reaching impact” are pressed for

The Commission’s now aborted Study of Fairness

Doctrine, initiated prior to the court’s decision, was

specifically designed to determine if any of the dangers

that have been asserted (but nowhere documented) as

realities by petitioners might arise. The Notice of Inquiry

58 It seems plain, for example, that a rule which required broad-

casters to carry only one editorial advertisement per 24 hour period

would not trigger the consequences which petitioners fear. At the

other extreme, a rule which prohibited any commercial advertisements

even when all customers for editorial advertisements were satisfied

would raise serious issues.

59 That case involved a “final” agency regulation, unlike the pres-

ent facts which involve nothing more than an ad hoc adjudicative

ruling.

60 public Affairs Associates, Inc. v. Rickover, 369 U.S. 111, 113 (1962)

COE LOLI REE AE TS.

explicitly contemplates that it may be workable to pro-

vide limited paid access for editorial advertisements:

We request comment on the question whether

there is any feasible method of providing ac-

cess for discussion of public issues outside

the requirements of the fairness doctrine.

More specifically, we ask that comment be

addressed to the differing problems raised by

paid and free time; the specific standards

that should be followed for determining the

basis on which time is to be provided, if such

a course is recommended; the effect of any

such new procedure on the licensee’s gen-

eral responsibility to the public; and the im-

pact of such procedure on the licensee’s

duties under the fairness doctrine. Study

of Fairness Doctrine, 30 F.C.C. 2d at 33.®!

61 The court considered the arguments advanced here by peti-

tioners and rejected each of them as too speculative. Pet., App. A

pp. 36a-42a. BEM’s brief (at 37-52) and reply brief (at 24-31) in

the court below deal extensively with each of these points and

those discussions will not be repeated here. Moreover, we have al-

ready noted that some system of paid access is plainly feasible.

But in view of the strenuousness with which the broadcasters have

insisted that disaster will result from the decision below, it is use-

ful to briefly note here some possible responses to some of the

objections.

Contrary to the broadcasters’ assertions (CBS Pet. at 8-9, 14-

15; ABC Pet. at 6; Cf Post Pet. at 10-11) the court did not limit

the rules to be adopted to time, place and manner. (“At the least,

there may be regulations determining the time, place, and manner

of speech.” Pet., App. A, p. 39a (emphasis added).) The court

explicitly left open the possibility that it might be, necessary to

(cont’d)

Kp tind

The Commission similarly concedes that it does not

know whether (and, if so, under what criteria) broad-

casters already are turning over, substantial blocks of ad-

vertising time to the editorial spokesmen, be they wealthy

or otherwise:

The essential purpose of this part of the in-

quiry is to ascertain, if possible, the general

"patterns of licensee practice as to access on

a paid or sustaining basis (¢.g., for discussion

of controversial issues generally or of ballot

issues; for fund solicitation generally or for

parties or committees organized around bal-

lot issues), and whether it would be appro-

priate for this Commission to lay down

61 (cont’d) limit the amount of time sold to one group or to

present a particular narrow viewpoint. Pet., App. A. p. Sila. (The

court went so far as to say that respondent BEM’s ads might be

barred on these grounds in view of the, extensive coverage given

the Vietnam war. Pet., App. A, pp. 3a, 44a.) There is, in any

event, no evidence in the record indicating that enough editorial

advertising will come forward to in any way threaten a licensee’s

balanced programming with respect to any issue in view of the

broad discretion accorded licensees in achieving an overall balance

in the presentation of opposing views. Fairness Primer: Applica-

bility of the Fairness Doctrine to the Handling of Controversial

Issues of Public Importance, 29 Fed. Reg. 10415 (1964). (It is

not true that one spot ad may only be balanced with other spot

ads. ABC Pet. at 10-11, 13, n. 7. See specifically In re Wilder-

ness Society, et al, 31 F.C.C.2d 729 (F.C.C. Memorandum Opinion and

Order No. 71-971 (Sept. 17, 1971)).) The same “trustee” stand-

ards and approaches already used by broadcasters in choosing

among competing ideas and speakers under the fairness doctrine

could, for example, merely be extended to licensees making choices

among competing applicants for paid access.

criteria or guidelines for these purposes,

(Ibid, )®2

It is clear that some broadcasters already accept some

editorial advertisements. (See Post Pet., p. 14.) There

is not one scintilla of evidence in the record that any of

those broadcasters suffer any of the horrors postulated

by petitioners, Surely the guidelines employed and the

62 Again the court directly dealt with the argument that the

wealthy would dominate the national agenda. Pet., App. A, pp.

cess recognized by the lower court is a complement to, not a sub-

stitute for, the fairness doctrine. Since the application of the latter

ate to assure that no particular group, point of view or issue could

preempt the airways, no matter the number of dollars at its com.

mand.

In any event, by the very nature of commercial media, the

wealthy have always had greater access‘to public forums than -the

paternalistic broadcaster controlling all access (cf. ABC Pet. No.

71-866, 5, 8; CBS Pet. No. 71-863 at 15) may inadvertently over-

look the views of such groups. When they do manage to raise

the money to Present an editorial, flat bans will clearly preclude

their self-expression. Moreover, even less than wealthy persons

might be able to afford to purchase one spot announcement and,

in it, request funds to finance additional ones. Cf. F.C.C. Opinion

in DNC, Pet., App. B., at 72a-73a.

63 It is also clear that many commercial advertisements are in

fact taking Positions on controversial issues of public importance,

See Banzhaf v. F.C.C., 405 F.2d 1082 (D.C. Cir., 1968), cert.

»(cont’d)

: : a

experience of such broadcasters is highly relevant to a de

termination of whether a regime of paid access for edito-

rial messages is workable. And, in the Inquiry, the Com-

mission expressed an open mind about whether such a

system would result in administrative apocalypse. It

asked:

Whether it would be appropriate for this

Commission to lay down criteria or guide-

lines .... If so, what would they be?

Or, are the problems in this area so varied

that decisions should be left to the judg-

ment of thousands of licensees and, in cases

of complaint, to the adjudicatory process?

(Inquiry, pp. 7-9, supra.)™

The Commission concluded its Notice of Inquiry with a

question:

[S] hould we reaffirm present Commission

63 (cont’d) denied sub nom Tobacco Institute v. F.C.C., 396

U.S. 842 (1969); Friends of the Earthy. F.CC, F.2d (DL.

Cir. No. 24,556, August 16, 1971); Letter to National Broadcasting

Co., 30 F.C.C. 2d 643 (F.C.C. 71-704, June 30, 1971).

64 Neither administrative anarchy nor censorship is any more

likely under a system of limited paid access than already exists

under the fairness doctrine. Every refusal to broadcast a contrast-

ing viewpoint is also potentially the subject of a complaint to the

Commission and of court review.

65 The Commission’s stated intention to investigate the extent

to which a system of limited paid access is feasible must of course

silence any protest that such a system violates the statutory scheme.

(cont’d)

In the face of the “woefully lacking”’® record in this

case, only a showing of extreme “hardship” might justify

a decision by this Court.6? This has been the consistent

position of this Court in cases involving even administra-

tive regulations.® Where First Amendment rights are in-

volved, the showing of hardship imposed on the person

silencing speech must be concomitantly greater.”

This Court’s refusal to review at this time would in-

flict no real harm on any of the petitioners. The broad-

casters have not been ordered to sell spot announcement

airtime for any specific editorial advertisements. The

65 (cont'd) It is repeatedly contended (Pet. at 3; CBS Pet. at’

10-11; Post Pet. at 3; ABC Pet. at 9) that the limited system of

paid access sought by respondent would convert licensees into com-

mon carriers in violation of Section 3(h) of the Communications

Act, 47 U.S.C. §153(h). Section 315 is cited in support of this

proposition. While the court disposed of these contentions on the

merits, (Pet. App. A, pp. 37a-38a) the Commission could not have

reached the same result in its Inquiry if this violated the statute.

The Commission was clearly cognizant of Section 3(h). It opened

the Inquiry with explicit mention of its duty to abide by this pro-

vision. 30 F.C.C. 2d 26-27. Yet consistent with that duty, it pro-

posed a study of a limited right of paid access.

66 Pyblic Affairs Associates, Inc. v. Rickover, 369 US. 111,113

(1962).

67 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.

123 (1951).

68 Toilet Goods Association, supra, 387 U.S. at 162-166.

St ad QAI at <A apn wr

case has simply been remanded to the Commission to de-

termine under what circumstances some members of the

public may be entitled to air their ads.” The Commission

for its part, had already begun a proceeding to gather

data it needs to determine the conditions under which a

limited system of paid access could be implemented. No

untoward burden is imposed on the Commission by re-

quiring it to resume that proceeding which it has unex-

plainedly suspended.

In the delicate area of speech, this Court has long rec-

ognized that the Constitution requires that persons be af-

forded the broadest possible opportunity for self expres-

sion.”!_ Before restricting or expanding the “breathing

space” ’2 which speech via the broadcast media enjoys,

this Court should have some notion of what are likely

to be the effects of a system of limited paid access. In

Red Lion, the Court was presented similar protestations

of doom by the broadcasting industry regarding the ap-

plication of the fairness doctrine.” If the personal at-

tack and political editorialization doctrines of the Com-

mission were allowed to stand, it was argued, the result

70 it is true that even before the Commission promulgates final

guidelines, broadcasters will have to abandon flat bans to editorial

advertisements. If this creates serious problems, the courts are as

available to broadcasters as to private parties.

71 See Cantwell v. Connecticut, 310 US. 296, 304 (1940),

holding that governmental restrictions on speech must be narrowly

drawn “so . . . as not, in attaining a permissible end, unduly to

infringe upon the protected [First Amendment] freedom.” See

also Cox v. Louisiana, supra, and Edwards v. South Carolina, 372

US. 229 (1963).

72 NAACP y, Button, 371 US. 415, 433 (1963).

73 See e.g, briefs of CBS and National Broadcasting Co. in

Red Lion, supra.

would be to deter speech because of the obligation to

present opposing views. The Court responded that:

that possibility is at best speculative. The

communications industry, and in particular

the networks, have taken pains to present

controversial issues.... And if experience

with the administration of those doctrines in-

dicates that they have the net effect of re-

ducing rather than enhancing the volume and

quality of coverage, there will be time enough

to reconsider the constitutional implications.

(Red Lion, 395 U.S. at 393.) 75

Here, too, there will be time enough to review the

workability of a regime of limited paid access in the light

of experience. A premature review could indeed result in

a “constitutional straight-jacket”” which might either over-

protect or under-protect speech.

The case is plainly not ripe for review.

74 It is ironic, to say the least, to now find the broadcasters

citing the fairness doctrine as the panacea for public rights with

which they can comfortably live.

15 To the extent timorousness has resulted from the chilling

effect of the fairness doctrine, (see Red Lion, supra at 393-94)

some system of limited access suggested by the court below pro-

vides one means of assuring some amelioration. See, e.g., Pet.,

App. A, pp. 24a-25a.

Ill. THE DECISION BELOW IS NOT IN CONFLICT

WITH THE DECISION OF ANY OTHER CIRCUIT

Citing two superannuated decisions in other circuits —

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

(3rd Cir., 1945) cert. denied, 327 U.S. 779 (1946) and

Massachusetts Universalist Convention v. Hildreth & Rogers

Co., 183 F.2d 497 (ist Cir., 1950) — the three broad-

caster petitioners allege that the decision below creates a

direct conflict among the circuits.”

The Solicitor General, on the other hand, eschews making

any such argument. Rather, noting that the Commission’s

report, Editorializing by Broadcast Licensees, 13 F.C.C. 1246,

was not adopted until 1949 and its Fairness Primer, supra,

was not published until 1964, the Solicitor General merely

cites the McIntire and Massachusetts Universalist decisions

as reaffirming licensee discretion “to determine what pro-

gramming is in the public interest.” (Pet. 14, fn. 6. Em-

phasis added.)

Examination of the McIntire and Massachusetts Univer-

salist cases indicates that they are in no way in conflict

with the decision below. First, both cases involved the

sale of programming time, not spot announcement time,

whereas the court below made clear that its decision was

limited to the latter form of time, i.e., that time which

commercial broadcasters hold out for sale to members of

the public.

Second, both McIntire and Massachusetts Universalist

involved actions brought in U.S. District Courts to re-

quire broadcasters to sell airtime. The dispositive rationale

76 ABC Pet. 14-16; CBS Pet. 17-19; Post Pet. 11-14.

of both cases was that the district courts lack jurisdiction

to entertain such actions since the Communications Act

vested in the Commission “the power to pass upon all

such allegations of unfair treatment as the plaintiffs

made here respecting the defendant.”” (Mc/ntire, supra,

151 F.2nd at 597; Massachusetts Universalist, supra, 183

F.2nd at 500, citing Mcintire.)”

Third, neither McIntire nor Massachusetts Universalist

involved a flat ban on political speech, but rather involved

the cancellation of a specific speaker’s contract to purchase

programming time. Thus, those cases involved none of the

questions of discrimination against political speech in favor

of commercial speech which, in part, persuaded the court

below to reach its result. The cases are fully consistent

with the narrow ruling of the court below which simply

invalidated “the flat ban [against selling editorial adver-

tising time] alone leaving it up to the licensees and the

“. "mission to develope and administer reasonable proce-

dures and regulations determining which and how many

editorial advertisements would be put on the air.” 8

Finally, to the extent that McIntire and/or Massachu-

setts Universalist suggested, by way of dictum,” that the

7 See also Retail Store Employees Union, Local 880 v. F.C.C.

436 F.2d 248, 256 fn. 49 (D.C. Cir., 1970): “since McIntire merely

held that regulation of program content was within the province

of the Commission rather than the district courts, the citation can

hardly be regarded as illuminating.”

78 Pet., App. A, p. 3a.

9 Any statement regarding the application of the First Amend-

ment was dictum in those cases because, as noted above, they were

grounded upon determination that district courts lacked jurisdiction

to entertain the complaints.

SN SINGS REPTILE SUPPRESS SLT “

First Amendment does not govern the operations of broad-

casters in allocating their airtime, that notion has been

firmly put to rest by this Court in Red Linon, supra,

at 386: “broadcasting is clearly a medium affected by

a First Amendment interest .. . .”

Thus, as recognized by the Solicitor General, the two

ancient cases cited by the broadcaster petitioners are not

in conflict with the decision below. At best they take a

different point of view on other issues (sale of program-

ming, not spot announcement, time and the jurisdiction

of the district courts) which arose in a context prior to

the advent of the Fairness Doctrine and this Court’s af-

firmation in Red Lion that the First Amedment clearly

must govern the way in which a broadcaster deals with

controversial issues of public importance.

CONCLUSION

For the reasons above stated, the petitions for a writ

of certiorari should be denied.

Of Counsel:

JOSEPH N. ONEK

1600 — 20th Street, N.W.

Washington, D.C. 20009

February, 1972

Respectfully submitted,

THOMAS R. ASHER

Media Access Project

1812 N Street, N.W.

Washington, D.C. 20036

ALBERT H. KRAMER

Citizens Communications Center

1812 N Street, N.W.

Washington, D.C. 20036

Attorneys for Respondent

Business Executives’ Move

for Vietnam Peace

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.