# Brief for the Respondent in Opposition — Columbia Broadcasting System, Inc. v. Democratic National Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondent in Opposition - **Published:** January 1, 1973 - **Citation:** 412 U.S. 94 ## Text INDEX Page 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 Ty 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 oe _ 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 ie 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 Z 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 a, 4 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) 5 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. —— 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 9 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 a 10 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). 11 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. 12 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 13 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, 9. a 14 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.” 15 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. 16 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. i 17 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). a >... TS RELENTLESS FI ARAN IEA NITS , 3 OER RAR ia aot Sr neg 3 aC om ange —y 18 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. sg ep tres eptte CARS _ geal 19 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 %, a 20 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). 52 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). 21 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). ae 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 decision, ‘adequate and full bodied record is required.” © 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. 23 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) ly Kp tind ae 24 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. 25 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 26 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 policy and practice? (Jbid.)®© 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. ©9 See Near v. Minnesota, 283 US. 697 (1931). St ad QAI at