*1 RADIO, BRAND YWINE-MAIN LINE INC., Appellant,
FEDERAL COMMUNICATIONS COMMISSION, Philadelphia
Greater Council Churches al., et Intervenors. 71-1181.
No. Appeals,
United States Court of District Columbia Circuit.
Argued April Sept. 25,
Decided
Dissenting Opinion Nov.
Rehearing Denied Dec.
Bazelon, Judge, Chief dissented and opinion. Wright, Judge,
filed Circuit response Tamm, filed a in which Circuit
Judge, concurred.
]7 *3 Messrs. Benedict P. and Eu- Cottone gene Mullin, C., Washington, F. D. Washing- Eldridge, whom Mr. John C. ton, C., brief, appel- was on D. for lant. Joseph Marino, A.
Mr. Associate Gen. Counsel, F.C.C., appellee. Messrs. Wiley, Richard E. Gen. Counsel at the filed, Conlin, time the brief was John H. Associate Counsel at the time the Gen. filed, was brief and Miss Katrina Ren- ouf, F.C.C., Counsel, the time the filed, ap- brief was were the brief pellee. Schattenfield, Mi-
Messrs. Thomas Tillotson, chael David Wash- Valder and C., ington, on the brief for in- D. tervenors. BAZELON, Judge, and Before Chief Judges. TAMM, Circuit
WRIGHT and Judge: “WXUR”) TAMM, Circuit licensee radio stations WXUR-FM, WXUR and in Me- located hold no freedom We inviolable more dia, Pennsylvania.2 Yet, light of even in precious than our first amendment high extremely standard we speech. unfet- freedom Free case, have set affirm must tered debate has cornerstone been a opinion of the Commission. Republic our for almost hundred two years. Any attempt to those who silence FACTUAL BACKGROUND I. speak, unpopular would no matter how Operation Early opinions, controver- A. WXUR their no matter how views, sial their must be with im- met Brandywine operate licensed opposition by movable those who cherish WXUR in 1962 the Commission after our and hold them dear. basic freedoms determination that such license serving beneficial inter- silencing peculiar evil of [T]he *4 daytime is a standard est. WXUR-AM expression opinion it is rob- is that while is a broadcast station WXUR-FM bing race; posterity as human The full-time station. two stations are existing generation; well as' the those Media, Pennsylvania. in the sole stations opinion dissent still who from the Brandy- happen, As has known to been more than those who If the hold it. suffered financial and the wine reverses right, deprived opinion is expressed in stockholders an interest opportunity exchanging error selling company in 1964. Contem- wrong, they for if is truth: lose what poraneously, WVCH, in Station located great benefit, almost as the clearer Pennsylvania (a Chester, town perception impression livelier neighbors Media) to terminate elected truth, produced by its collision with broadcasting Century 20th Reformation error.1 Hour, program produced Carl Dr. setting in which we must Mc- Mclntire.3 This event left Rev. dispute arising the re- consider the program no outlet in lntire with for his fusal of the Federal Communications Philadelphia broadcast market. (hereinafter Commission Commis- “the therefore, understandable, that Dr. when sion”) to renew the license might Mclntire learned that WXUR .Brandywine-Main Radio, Line Inc. Theological available, the Faith Sem- (hereinafter “Brandywine” either inary4 Seminary”) (hereinafter “the Mill, Buckley Liberty, quoted m J. in- how he had When asked obtained this Meng, 35 Misc.2d 230 N.Y.S. formation, Mclntire continued: (Sup.Ct.1962). 2d It was obtained a committee that pressures went that [sic] were stations, Despite fact two just up as to rea- built what was the WXUR-FM, WXUR and are involved being son Dr. Mclntire was removed suit, in this “WXUR” reference to difficulty we and when found this employed designate will be both the attorneys or with in con- FOO frequencies, FM AM and other- unless FCC, problem nection with the the same indicated. wise sought get me I confronted as community. other stations When hearing Mclntire Dr. testified at virtually we that we found were blacked license renewal that: views, opinions and that our out our I WVCH] received notice [from going were not to be in the aired forming program me the be ter- would community, we became interested very great minated made issue purchasing being part a station publicly of it here and committees purchase way of a some so organized to see if it couldn’t be con- program such as mine could be aired given The [cancel- tinued. reason community. , given us, lation] was V, J.A. Yol. 4236-37. attorneys the advice of in Wash- ington Theological Seminary in connection with their FCC 4. Faith is located problems put Park, Pennsylvania, led them me off. in Elkins near Phila- relationship agreement the transferee of the purchase into an entered Mclntire, President of in Reverend Carl Bradywine’s interests stockholders’ Theo- Seminary an the Board of Directors Faith October, The filed logical Seminary, Inc.” seek- application with the proposed purchase ing approval for the major opponents to concern of the Brandywine’s for Commis- stock and would the transfer was that station Seminary’s pro- approval for the sion incapable providing for a balanced be presentation posed operation of WXUR. light opposing views Application B. of Mclntire’s connection with the Semi- Transfer nary programs and in view of his radio proposal to the Commission In its publications. Seminary continue stated general format of broad- the casting complaints station’s The main thrust entertainment, talk shows concerning Mclntire, that, Rev. newscasts, addition, two programs publications, short his radio religious programs would be misleading one-hour he has made false and weekday;5 station broadcast each statements and deliberate distortions religious programs relating would also broadcast facts to various Sunday.6 religious terms until noon on relations, issues such as race sought application Com- etc.; the Seminary unity, foreign aid, that he operate permission to “for the “intemperate” mission made on other attacks broadcasting principal purpose religious leaders, denominations and *5 Gospel governmental Jesus organizations, of our Lord and Saviour various agencies, political Gospel, Christ, figures for the defense of the and interna- purposes organizations; the and for the set forth in that such tional expressions and Incorporation.” appli- irresponsible of This Charter and a opposition, how- community cation not without in the and was divisive force ever, community groups help preju- as fifteen fear, some create a climate of individuals church- and a number of and insti- distrust of democratic dice and op- community alleged that, their es within the made It also tutions. is Commission.7, light position “partisan known to the of his record of re- it also Commission noted extremist” on various is- views many degree sues, indi- ceived communications from lacks the of social and he propo- responsibility who viduals and churches were demanded of (cid:127) of As Commis- and that nents the licensees carry the transfer. complaints [opposing opera- into sion noted views will over the “[t]he application] on his con- the are based tion of the view of transfer stations presided delphia. of the Mclntire Conference United Reverend Southeast Presbytery Christ, Seminary’s the of Phil- Board Directors Church over League, purchase Brandy- adelphia, the National Urban at the time the offer Philadelphia Council Church- tendered. Greater wine was Community es, Relations Jewish Missionary programs were These two Jersey Council, the New Council Gospel Hour Hour. Churches, Philadelphia Council of Sunday programs morning Baptist AFL-CIO, were en- 6. The the American Con- Sunday Morning, Synod Pennsylvania It’s Dedica- vention, titled: the Eastern Hour, Work, tion, America, Men’s The Church Church Lutheran Sunday Association, Philadelphia Baptist Church U.S.A. Service and the In- Executive Catholic Committee groups following and individuals York. terracial Council of New opposed among the transfer were those Philadelphia application:' the Greater Borst, Application George UNICEF, E. for the Na- In re Area Committee Reg.2d al., F Radio tional for the Advancement et 4 P & Association (hereinafter (March 1965) People, “Borst the Anti-Defamation Colored Pennsylvania Decision”). League B’rith, B’nai Approval C. Commission nection with the transferee. is al- of Transfer leged, question finally, a serious Opin- The Commission’s Memorandum light views, raised, of his is thus granting ion and Order12 the transfer bring whether is will be able he forthcoming application on March op- presentation about a balanced opinion, 1965.13 known as posing place will views or whether he Decision, Borst summarized the nature personal his above the station’s views complaints opposing received14 obligations.9 public interest Seminary’s application. The Com- by expressing mission that, continued applications transfer While the policy, a matter of pending, Commission com- still wisely [t]he Commission forbid- Seminary re- municated with with choosing “among den applicants gard applica- aspects various upon political, their basis of eco- particular interest as tion with nomic or social views . .’’As station be whether “facilities Douglas Mr. Justice stated: presen- available to other faiths strength “The of our religious and, so, [broadcast- if programs, tation ing] system dignity, re- under what conditions circumstances.” intelligence sourcefulness and the Seminary filing responded an people. our Our confidence original application amendment ability their to make the wisest which stated which included an exhibit system choice. That cannot flour- Seminary’s intent “make time regimentation ish if takes hold.” equal non-discrimin- available religious atory basis to all faiths re- The Decision noted that Mclntire Dr. questing presentation represented of re- time for the relationship that his ligious programs.” To further insure WXUR would as that of a broadcast- religious er management broad- balance area of decisions would casting Seminary’s pro- amendment left to three other members of the program Seminary’s vided for a half-hour Sun- who Board would constitute *6 day Brandywine.16 Forum.11 the be known as Despite Board of all Interfaith Decision, supra, 15. 9. Id. at 2. Borst ¶ at 3. Citations If omitted. II, J.A. Vol. 10. 120-27. 16. See letter of Mclntire E. Carl to Wil- 11. The amendment described Interfaith Henry, liam of Chairman the Federal program Forum in which ministers as a Communications Commission. this let- representatives different faiths of ter Rev. Mclntire stated: participate will be in round- invited to constantly being alleged I am principles religious table discussions of buying know, You station. of and to current social tenets as related course, corporation problems. Every will be made to effort Seminary I of which am a member and participation obtain varied from week presently president am portion. of the cor- greatest possible to week to assure the you I ... want to know subjects balance of of views on any I have no financial interest discussion. way Moreover, in this sale. I own no II, J.A. Yol. radio station and have no financial in- Supra, country note 8. terest radio station anywhere else. The Commission not unanimous was II, J.A. Vol. 140. While Rev. Mclntire Hyde its action. concurred Commissioner president Seminary was not the he only. in the result Cox Commissioner large did list a number of other associa- application dissented in the belief that application. tions on the transfer He is hearing. designated for a should have been Presbyteri- listed as Pastor of Bible concurred, espe- Loevinger Commissioner cially Collingswood, Jersey; an Church New of displeasure expressing with the his President of Board of Trustees of concerning action in itself Commission’s May, College, Cape Jersey; Shelton New with Mclntire’s views. Independent Vice-President Board of supra. Presbyterian Foreign Missions; 14. See text note at Presi- public nonethe- troversial but consider issues19 did the Commission of this application’s opponents felt constrained to less fear of the basic Mc- under Dr. would the station [specifically to our direct attention it would Intire’s influence and that Broadcasting ruling Co., in Cullman divergent give treatment full and fair [requiring presentation FCC 63-849 required issues as on controversial views conflicting at views licensee ex- by interest standards both pense willing pay if advocates doctrine.17 fairness the Commission’s time cannot be found] ultimate conclusion Commission’s personal principles (see to our attack hearing ap- on transfer was that a July Applica- Public Notice plication unnecessary because bility Doctrine, the Fairness Part in-depth representations, contained E) required operate the licensee is fully comply application, require- in accordance with these obligations acknowledged station’s immediately ments, unless fairness arena.18 contrary, formed to li- we take the representation encompass censee’s great The Borst Decision went requirements.20 lengths reiterate reinforce obligations expressed duties and under transferee’s the view per- offering both fairness doctrine and record Dr. Mclntire’s corollary. response oppor- attack free sonal The Commission time for either an tunity Brandywine’s respond took notice of sub- written debate some issue or opportunity equal mission that some attack not suffice to “[would] discharge viewpoints responsibilities opposing afforded to con- on fairness Seminary replied by Press, Inc., stating: dent, Christian Beacon Col- Opportunity lingswood, Jersey; equal opposing on terms to New President Beacon; viewpoints on editor of mem- controversial is- the Christian High- Subjects sues. ber the Board Directors will be selected College, Pasadena, present- station will land California. be those either supra, Decision, sponsors fn. 2. ed Borst or members of listen- ing calling in on audience “Freedom of 17. The doctrine has been codified fairness Speech” program. Replies to contro- § U.S.C. expressed sponsored views, versial programs Applica- spokesmen equally Question of the Broadcast will be (Statement Program qualified spokesmen tion Service sponsored appli- Applicant) requires program. Broadcast II, cant to make J.A. Vol. *7 . Finally, following “. .a narrative statement on the consider the from the policy pursued respect to with to be above form: making appli- time available for the discussion 29. State the methods public issues, including keep of illustrations cant undertakes to of the informed types programs requirements of to be of broad- of the Communications and cast the methods selection Act Regulations, and Commission’s and Rules subjects participants. description and and a Theological Seminary responded procedures acquaint ap- Faith in established to following “Equal opportunity plicant’s employees agents terms: and with viewpoints opposing requirements will be afforded to such and to ensure their compliance. on II, J.A. Vol. controversial issues.” Employees required are to be familiar applicable In the Commission of AM or Statement with rules du- FCC to their Program question kept Copies FM Service ties. rules are FCC quires : posted station. FCC notices on bul- applicant’s pro- Washington In connection with the letin board. counsel posed public programming questions. affairs de- on doubtful consulted making policy respect II, scribe its J.A. 139a. Vol. pub- time available for the discussion of 19. Id. at 138. selecting lic issues and the subjects method participants. Decision, supra, Borst fn. 2a. ¶ and carrying in individual the broadcasts churches faiths licensee assure, to the full manner which will question.”21 possible, rep equal extent est fair and every effort made Commission varying resentation of views.22 Brandywine’s oppo- assuage the fears granted Brandy- become medi- Commission nents that WXUR application express one wine’s Mclntire could transfer with um over which warning Seminary personal to the exclusion final to the broadcast views his listening group. public. The the views following de- reprinted the reaching determination, In this promise programming from the tailed specific represen upon relied Brandywine application: indicating tations the transferee responsibili policy of the transferee licensee’s It be the awareness will equal grant event, on an In this is sub time available ties. to make ject nondiscriminatory applicable re- to all to the basis same conditions grants ligious In other ... to all broadcast . . [in . faiths. among words, cluding, and conditions terms itemized conditions] same applicable [Brandywine] faiths all will will be applicable requirements . be fair as will abide religious (see . . [of] faith Pri [Fairness ness doctrine ) will be transferee. ... .23 mer]
*17
policy to
time
available
make
began
management
The new
broadcast
religious
equally.
faiths
operations
29,1965.
April
on
However,
a half hour will
...
Period
D.
License
Sundays
available
utilized on
Brandywine’s
period ran
Forum
initial
for an Interfaith
license
through August 1,
repre-
April 29, 1965,
program,
ministers or
in which
important
It is
this court
of different
faiths will
1966.24
sentatives
during
operations
participate
round-table
invited
examine WXUR’s
religious principles
period
operations
are the actual
discussions of
as these
predicate
social
tenets
as related
current
the action before us.
problems.
management group as-
When the new
April
Every
made to obtain
control on
effort will be
sumed
making
they began
participation
substantial
varied
from week
format,
greatest
changes
possible
program
week
station’s
assure
changes
subjects
despite
balance of
the fact that
views
program
proposed
invite
indicated
discussion. The transferee will
Seminary
recognized
cooperation
presented by
minis-
format as
addition,
application.
Phil-
terial associations in the
the transfer
Greater
programs
adelphia
Com-
present
recom-
one
on which the
area to
their
greatest
participants
placed
reliance
mendations
mission
sub-
jects
granting
application,
Dia-
program
discussion
Interfaith
logue,
appear
did
on WXUR
the event of failure to obtain
not first
28, 1965,
cooperation,
seven
until November
some
such
the transferee will
*8
Seminary
to,
con-
and
months after the
assumed
extend invitations
make sin-
by,
participation
cere
trol
station.25
efforts
obtain
8,
citing
Media, Pennsylvania,
3,
Report
9 P
F Radio
on
&
21.
Id. at
fn.
¶
(hereinafter
“Designa-
(1967)
Inquiry,
Reg.2d
“Living
Fun”
Be
Should
Order”).
101,
tion
F.C.C.
22.
Id.
¶at
Dialogue
With reference to
Interfaith
Id.
following
¶
ob-
made the
the Commission
Applications
Brandywine-Main
:
servation
In re
only
program
put
Radio,
on
Not
for
renewal of licenses
Line
Inc.
months,
WXUR-FM,
for
seven
at all
almost
of Stations WXUR
listing
programs
Seminary]
partial
could take the
[the
enumerated a
over,”
making
early
pe
appear
license
he commenced
ar-
which did
Station
rangements
although
riod
not included in the Semi
broadcast
above
Program
nary’s
“Typical
programs.27
programs
All of
amended
these
3, 1965,
May
shared one common characteristic:
Schedule.” On
WXUR
Forum;
coverage
solely
Manion
were devoted
broadcast
almost
Lifeline
1965;
viewpoints
May 4,
on
Behind
on
discussion of
contro-
the Headlines
May
Commentary
importance.
versial
issues
Howard
on
Kershner’s
integri-
5, 1965;
Independent
honesty,
on
Personal attacks on
Americans
ty
May
Report
6, 1965;
groups
and character of
in-
The Dan Smoot
on
both
were,
unfortunately,
May
1965;
League
Ameri
Church
dividuals
8, 1965;
infrequent.28
May
ca on
and Christian Cru
regard,
sade on June
1965.26 In this
Seminary
Seven months
after
interesting
by
it is
the admission
note
operation WXUR,
commenced
the sta-
Norris,
manager,
John H.
the station’s
subject
tion was the
condemna-
Borough
that “as soon as the
tion
said
the Media
F.C.C.
Council29
Brandywine
was,
patently
when it
26. Id. at
30. The
¶
Commission continued
carry
important prom-
by stating:
failed to
out the
every
get
programs, covering
ise to “make
effort” to
These
controversial
participation.
they do,
merely chang-
varied
moderator
issues as
are not
programs
the first broadcast was Norris himself.
es
title from the
deleted
pastor
guests
York,
mainly
schedule,
His
wore his
in-
from the
Pennsylvania,
Albany,
programs
the Reverend
cluded
classified as of the
George McDonald,
type.
trustee
fellow
“entertainment”
assume
We
organ-
applicant
of the American
News
Patriotic
failed to include
(Tr. 3635-3636.)
programs
opposi-
ization.
Prom the
because of the
5, 1965,
application, erroneously
second
broadcast
December
tion to its
be-
through April 1966,
lieving
the moderator was
the inclusions would have
Seminary faculty
Gary
important
member Dr.
affected our action. What is
(Tr.
5596.)
willingness
Cohen.
the sec-
On
to us is the
to withhold from
(December 5, 1965)
Seminary’s
ond
us the
intentions with re-
Dialogue,
spect
pro-
Inter-faith
Dr. Cohen in-
to a substantial amount of
Broadwick,
engi-
gramming,
terviewed William
it is clear that
the in-
Seminary
carry
programs predated
neer at WXUR and a
stu-
tention to
(WXUR
49A,
acquisition
dent.
Exh.
Tr. 5514-
control and we were
5519.) Cohen interviewed Broadwick
never
it.
informed of
again
(December
1965)
(emphasis added,
omitted).
on the third
Id.
footnote
(Ibid.)
broadcast.
On the fourth
despite
27. Tr. 3727-28. This is
the direct-
(December 19, 1965) broadcast, Cohen
ly contradictory
evidence offered
Nor-
Carpenter,
interviewed Donald
another
ris some five weeks earlier to the effect
Seminary
(Ibid.),
student
and on the
programs,
the new
which he termed
fifth broadcast
interviewed the
Cohen
air,
the “Nine Hate Clubs” of the
Paucett,
Reverend A. Pranklin
anticipation
spon-
him in
added
of a
Seminary’s Registrar.
(Ibid.) None of
boycott.
sors’
This was not
complied
these broadcasts
with the Sem-
consistency
is,
fact,
of the record and
inary
application representa-
transfer
discrepancies
one
the less serious
before
program
tion that
would consist of
July Decision, supra,
us.
at 31.
by representa-
“round-table” discussions
generally
(Appendix
28. See
Initial Decision of
tives of
Hear-
“different
faiths.”
ing Examiner,
(1970)
D;
5.)
on,
24 F.C.C.2d
Bur.Exh.
Prom that
time
(hereinafter
Decision”).
although
completely
up
“Initial
not as
taken
by Seminary
program clearly
people, the
meeting
29. The Minutes of a
held on No-
up
promise.
did not
live
to its
18, 1965,
Borough
vember
of the Media
woefully inadequate,
Examiner
found
Council,
following:
reflect the
agree.
and we
protested
Mrs. Austin
to Council about
Applications
Brandywine-Main
program
In Re
WXUR,
which she feels
Radio,
promotes
Line
Inc. for Renewal
Licenses
hate
dissension
attack-
*9
WXUR-PM,
of
ing minority groups.
program
Stations WXUR and
Media, Pennsylvania,
Speech”.
24 F.C.C.2d
is called “Freedom of
(1970)
(hereinafter
“July Decision”).
She considers
a
this malicious act and
pack-
necessary
Representatives
of the
“renewal
were sent
the House of
Assembly.30
early
by
Pennsylvania
et”
in 1966
the Commission.
General
continuing
Seminary’s
attempted
At this time WXUR was also
Broadcast Board
specific
nerves cre-
to
more
communications
to
some of the ruffled
receive
soothe
Freedom,
Speech pro-
relating
by
to com-
from the Commission
ated
individuals,
attempts
plaints
gram,31
its
it had received from
and continued
governmen-
rehabilitating
image by
community groups
in-
the station’s
and local
Dialogue, prom-
troducing
Inter-Faith
tal bodies.
The record
discloses
January
attempts
time to
ised in the
1965 amendment
WXUR made
this
again
image
Brandywine’s
public
by
application,
on
transfer
once
enhance its
produce
programs
attempting
several
November
1965.32
containing
contrasting
viewpoints
on
required
file
renew-
its
WXUR was
They
impor-
early
public
application by
May,
controversial
issues of
al
day
19, 1965,
disgrace
the citizens of Media.
one
after
a
On November
Borough
was
that a letter should
resolution
Mr. Reed stated
Media
passed,
Council
Livezey
his
the Federal
was removed from
written to
Communications
position
moderator of Freedom
Commission.
by
Speech.
meeting
Baker,
At a
of the
of Mr.
seconded
Council
On motion
January
Loughran,
a motion was
a letter be written to
held
made, following
Mr.
by
pro-
presentation
repre-
allegedly
biased
a
about this
F.C.C.
gram
WXUR,
stating that “a
station
So or-
sentatives of
of radio
WXUR.
stating that
letter be sent
to the F.C.C.
dered.
objectionable
II,
features
[Freedom
Yol.
145e.
J.A.
largely
Speech]
program
been
eliminated.”
this furor
which caused
of
J.A. Vol.
II, 145g.
Speech,
A letter to that ef-
Freedom
Livezey.
moderated
entitled
was
Speech
Solicitor
fect was sent
F.C.C.
Thomas
Freedom of
February 2,
telephone
where
Reed on
call-in show
was
Livezey
II,
begin
program
145h.
read-
J. A. Vol.
newspaper
ing
or an editorial
article
broadcasting
30. The matter of WXUR’s
by making
then
a short statement and
brought
policy
before the House
was
calling
microphones
people
opening
Pennsylvania
Representatives
Gen-
of the
Livezey frequently made “race bait-
in.
Assembly in the form of House Reso-
eral
particu-
ing”
on the air
comments
per-
14, 1965.
In
lution 160 on December
regarding
larly
livid
his comments
part
stated that
tinent
the Resolution
Livezey
minority groups.
call-
often cut
is whether
the Rev-
issue
[t]he
abruptly
opposed a
when
ers off
degree
Mclntire exercises the
erend
position
espoused.
Novem-
which he
On
responsibility
social
24, 1965,
Reed, Jr.,
Howard F.
ber
Solici-
of a
licensee.
the law demands
broadcast
Borough
tor,
Media,
sent a com-
question
whether
There is
serious
Henry
munique to Commission Chairman
op-
WXUR,
under
Radio Station
Borough
Council.
behalf
Mclntire,
Reverend
erational control of
expressed
letter he
the concern of
this
presentation
giving
is
opposing viewpoints
the balanced
regard
Speech
with
Freedom
Council
required
of broad-
and commented:
licensees;
be it
cast
therefore
speech, we
free
Within the context of
do,
Rep-
RESOLVED, That
the House of
.
radio
. believe
resentatives
Commonwealth
inviting
general public
program
Pennsylvania requests the Federal Com-
by telephone
respond
receive
placed.
should
investigate
munications Commission
equal
with
treatment
all calls
WXUR, Media,
Penn-
Radio Station
reg-
that without some
We do believe
sylvania
whether or not
to determine
Commission,
type
ulation
requirements
complying
program, which is somewhat
of radio
licensee;
be it fur-
decep-
widespread
use,
can become
ther
tive,
in fact
tend to invite controver-
copy
RESOLVED,
reso-
That a
of this
derogate
sy unnecessarily,
free
the Federal
lution be sent to
Communi-
any pro-
speech;
all,
most
because
cations Commission.
necessarily
type
gram
in-
must
II, 145a & b.
J.A. Vol.
and limitations not
volve controls
communication,
in other media of
herent
29, supra.
31. See note
open
hearing.
nor so
II,
II,
J.A. Vol.
Vol.
145f.
J.A.
*10
programs
munity generally, and
were
whether
of these
Each
tance.
Brandywine’s
misrepresented
re-
carefully
was
Commission
the
detailed
3,
acquisition
May
application
of
in its
for
application filed
1966.33
newal
granted,
have,
control of
In
lat-
application
if
the
stations.
That
connection,
*11
concerning
nent and
stations’ facilities
relevant facts
cific offers
applicant’s
operations
responses,
for
where
stations
discussions
repre-
and WXUR-FM and its
controversial
have
WXUR
issues
concerning
attacks;
applica-
personal
sentations
such
volved
tion,
evidentiary
hearing
applicant
To determine whether
required.37
application
connection
its
with
of control
Stations
for transfer
Hearing
E. misrepre
and WXUR-FM
WXUR
program
to the Commission its
sented
Hearing
Irion
Examiner H. Gifford
pla
ns.36
hearing
evidentiary
to order
called the
designated the
The Commission
WXUR
Pennsyl-
2, 1967, Media,
on October
hearing stating
application
renewal
for
hearings
for over
recessed
vania.38
that was
three
on December
months
grant
to determine
unable
a
of the Intervenor’s
after
bulk
applications
renewal
would serve
these
evidence had been
Broadcast Bureau’s
public interest,
convenience,
submitted,
Brandywine
pre-
to allow
necessity.
In order
to insure that a
Brandywine
pres-
pare its case. The
detailing
perti-
full record is made
all
began
20, 1968.39
on March
entation
36. Id.
Mr.
EXAMINER:
Cot-
PRESIDING
tone,
him finish.
can move
let
We
37. Id.
you stop
along
if
the useless
faster
interruptions.
transcript
38. Tlie
reveals
that WXUR
you stating
I resent
MR. COTTONE:
palliative
undertook additional
measures
interruptions”;
I have a
“useless
introducing
pro
a new
on this date
evidentiary objections as I see
raise
gram
Right,
entitled
and Center on
Left
you
If
do not understand
fit.
frequency.
program,
FM
point.
objections, that is another
designed
left, right
to show
and mid
was
EXAMINER:
I can’t
PRESIDING
philosophies,
a
dle-of-the-road
lasted
I know what
rule on them unless
con
short time. The
did not
question is.
court,
program,
will
sider the
nor
V, tr.
J.A. Yol.
4383-84.
than
since
did not commence
more
Let the record show
MR. COTTONE:
year
license renewal
issue
after
by the
was made
when
Hearing Examiner,
remark
totally
the li
arose and was thus
outside
there was a moan
period.
V,
cense
See J.A. Arol.
2529-32.
audience.
try-
must comment on the con-
The court
EXAMINER:
I am
PRESIDING
Brandywine’s counsel,
ing
get along
perpetual
Mr. Cot-
duct on
tone,
without
hearing.
during
interruptions.
course
The witness has been
behavior,
handling
giving
We comment because his
himself well
a lucid
during
everything
forthright
more than one occasion
course
and a
account
injudicious,
rude,
hearing,
go
forward with
account. Could
directly
impudent
questions
obstructive to the
I
and answers.
sustain
objection.
proceedings
go
before the examiner. The
Let us not
over
replete
pamphlets again.
record before the court
may
obstrep-
I
one instance after another of
Now
look
MR. COTTONE:
part.
erous behavior
Mr. Cottone’s
them?
examples
will
few
from the record
A
MR.
What?
SCHATTENFIELD:
May
suffice.
I look at them
MR. COTTONE:
BY MR. SCHATTENFIELD:
now?
you
you
I
has been
Are
Q:
will show
what
MR. SCHATTENFIELD:
you
give
implying
marked
as Interven-
I
them to
for identification
didn’t
you
and ask
or’s Exhibits 77
before?
you
they embody
positions
COTTONE; No;
said, before, I
I
if
MR.
them,
respect
but now
to look at
taken with
to UNICEF.
didn’t want
Object.
him
MR.
Let
I look at them?
COTTONE:
object
identify
V,
them first.
I
Vol.
tr. 4387-88.
J.A.
you
question.
Did
MR. SCHATTENFIELD:
respect
any position with
MR.
I fin-
take
SCHATTENFIELD:
Can
ever
Treaty?
question?
the Panamanian
ish the
However,
hearings
on fairness
his conclu-
closed
doctrine.
The record of the
compilation
sions
to recommend
sanctions
fail
after
June
for these
It is not
8,000 page
and several
numerous violations.
nearly
record
necessary
prepare
court
hundred exhibits.
line-by-line analysis
and refutation
The Initial Decision
F.
*12
decision; nor
it
the Examiner’s
would
his
Hearing
released
Examiner Irion
prudent
Com-
opin-
for us to do so as the
be
on December
Decision
Initial
mission has issued its own detailed
very lengthy
examination
This
reversing
ion
the Examiner. Nonethe-
regard
thorough
to
most
with
case was
findings
sufficiently
by the
less we are
disturbed
high
however,
qual-
fact,
the
of
pause
to
Examiner’s final conclusion
finding
ity
to
examiner
led the
of fact
Ex-
to
a moment
reflect
comment.
findings
conclusions
irrational
saying:
by
aminer Irion concluded
this
have termed
Intervenors
law.
by
shaped
Thus
decision must be
Brandywine’s
decision “a whitewash
by
objectives
iso-
rather than
ultimate
performance
court
a licensee”41—this
as
not
lated instances
will
error.
Sever-
must concur in that assessment.
or dis-
an invitation to carelessness
examples
make this clear.
al
will
principles
regard
of the ethical
Contrast
Presentation
personal
volved in the
attack rules
Viewpoints
ing
Issues.
on Controversial
punishment by
will al-
since
forfeiture
Hearing
found that
Examiner
Irion
transgressor but,
ways
await the
comply
should be excused
WXUR
unusual circumstances
the
ease,
ing
fairness doctrine because
with the
justice is
Draconian
inadvisable.43
by
retained
station.
small staff
court,
to
to this
as was
It is clear
programming on
Secondly,
he found
Commission,
the Examiner
program
the
gan
be-
WXUR was balanced
ming
opinion
determin-
herculean
his
Philadel
of other licensees
ing
dis-
conclusion and ultimate
phia
both his
conclusions
market.
of these
Both
position
than suit-
of this case. Rather
clearly
The fairness doc
erroneous.
ing
punish-
licensees,
to “let the
his
applies
area
conclusions
trine
to all
while
adopt
crime”,
to
he chose
ment fit the
programming
valid consid
wide
is not a
the facts
determining
ill-suited to
licen
benevolent stance
whether
eration
Decision allows
re
The Initial
complied
this case.
the fairness
see has
with
tyrannize
appearance
The
over truth.
quirements.
F. C. C.42
See Green
opera-
surrounding Brandywine’s
facts
The
Violations.
Attack
2. Personal
pliant nor
so
tion of
are neither
WXUR
findings
numerous
made
Examiner
against
sufficiently
to allow for
malleable
comply
for failure
WXUR
Examiner.
conclusions of the
principle
personal
attack
with the
long.
pages
Initial Decision was 97
40. The
Pandemonium
MR.
COTTONE:
findings
paragraphs
treaty?
It contained 275
paragraphs
of conclusions.
and 54
I
MR. SCHATTENFIELD:
referring
you, Mr.
Cottone.
at 12.
Intervenors
41. Brief for
clever,
That
MR. COTTONE:
U.S.App.D.C.
F.C.C., 144
42. Green v.
you
please
said.
tell me what
(1971),
court
wherein
F.2d 323
V, tr. 4396.
J.A. Vol.
charged with
“that
a licensee
stated:
Perhaps
Mr.
actions
can
Cottone’s
Fairness Doctrine
violation
explained
“performing”
for the home-
as
by reference to com
seek absolution
[not]
However,
town crowd.
the court will
pliance
licensees.”
other
with
peanuts
popcorn
mute itself
to such
imagination
Through
stroke of
some
antics, designed to create
a circus-like
Brandywine
Green decision
cites the
permeate
atmosphere, which
exactly
prop
opposite
the court
displayed by
proceedings.
The attitude
osition.
contemptuous
counsel borders on
Decision, supra,
go
24 F.C.C.2d
therefore refuse to let it
unnoticed.
Initial
fully comply
opinion
doctrine.48
did contain a
number
with
Brandywine;
findings
point
fact,
how-
adverse
the decision
the Com-
ever,
necessity
excep-
failed
file
mission
the licensee
had “reiterated
tions
of these
Both
matters.44
that a
serve the
interest
licensee
Doctrine,
intervenors and the Broadcast Bureau
Fairness
adherence
excep-
including
principle.”49
personal
filed extensive
Commission
attack
tions.
proceeded to
The Commission
review
including
days
record,
fifteen
Decision
G.
Commission’s
broadcasts,50
monitored
and concluded
adopt
refused
Brandywine
“that
its new
under
owner-
Hearing
Opinion
Initial
Examiner’s
ship
did
reasonable efforts
not make
adopted
opinion
July
its own
comply
Doctrine dur-
Fairness
applica-
it denied
the licensee’s
ing
period.”51
the license
The Commis-
independent
tion
*13
renewal after
studying
discovered,
sion
result of
as a
In its
review the
review
the record.
submissions
on the monitored
the
based
Commission
drew adverse
conclusions
periods,
to
failed
com-
that WXUR had
Brandywine’s
compli-
with
to
reference
ply
in a number of instances
which
doctrine,45 compli-
ance with the fairness
one
side
an issue was
personal
principle
ance
the
attack
with
during
periods
present
without
these
to the
also with reference
manner
ing any
viewpoints
any
opposing
on
misrepresented
Brandywine
issues,
but one of
and with an
these
program plans to the Commission.47 Let
insignificant
presentation
on that
is
reasoning
us
the Commission’s
examine
sue, despite
contro
fact
that such
the
separately.
in each area
programming
versial
issue
a sub
part
stantial
of WXUR’s
total
1.
Fairness Doctrine
programming.52
was,
doctrine
The fairness
Additionally,
found
the Commission
view,
aspect
the central
Commission’s
affirmatively
WXUR had failed
litigation.
reason for
this is
responsive
requisite
come
forth with
issuing Brandy-
prior
axiomatic —
necessary
Brandy-
to illustrate
evidence
initial
wine’s
license
tremendous
compliance
wine’s efforts to
with
assure
expressed
amount of concern was
to the
per-
both the
doctrine and the
fairness
parties,
numerous
Commission
each
promised
principles,
sonal
as
attack
fearing that
would fail
to com-
WXUR
application.
the initial
transfer
ply
Brandywine’s
re-
with
doctrine.
that:
found
sponse
ap-
was clear and
these fears
forthright
any
parently
promised
Brandywine
had
at
failed to establish
—it
regular
application
procedure
previewing,
time
transfer
44.
Rules
Id.
Commission’s
46.
at ¶¶
Section 1.277
18-22.
requires
exceptions
Regulations
anti
47.
Id. at
23-32.
¶¶
findings
pre-
adverse
taken from
pp.
supra.
appeal.
22-23,
any objections
48. See
on
serve
exception
(a)
initial deci-
Each
July Decision, supra,
¶at
any part of the
sion or to
record or
large
receiving
50. After
number
com-
any case,
including
proceeding in
rul-
pro-
plaints
alleged
about
listeners
upon
objections,
ings
motions or
shall
abuses,
gramming
the Broadcast Bureau
point
particularity
alleged er-
out with
on
monitored
broadcasts
WXUR for
ruling
decision or
and shall
rors
days
eight
in the middle of
consecutive
specific
page
contain
references
taped
period.
The intervenors
license
pages
on
ex-
or
...
which the
days,
during
also
seven
consecutive
objection
other
Any
ception
not
is based.
period.
the license
pursuant
by exception
saved
section is waived.
July
supra,
Decision,
9.¶
1.277(a)
(1972)
(emphasis
§
C.E.R.
supplied).
July
Appendix
Id. See also
A to
at ¶¶
July Decision, supra,
Decision, supra.
8-14.
reviewing
not invitations
since “these
monitoring
its broad-
anee
were
and,
important,
regularly
more
know the licensee
casts,
and thus did
adequate
being
invitations
presented
on do
constitute
views were
what
contrasting
present
on
issues
public impor-
views
issues
controversial
Similarly,
Appendix A.”55
prima
forth in
Despite
evi-
set
tance.
facie
suggestion
rejected
parties
the Commission
presented
other
dence
obligations
issue,
fairness
Brandywine
not re-
licensee’s
did
on this
daily
by the
of a
any
of its
could be met
existence
spond
review
further
issues,
program,
Free-
one-hour
entitled
call-in
of such controversial
treatment
Speech,
period
on
could
dom
which a listener
license
the full
either for
briefly
any topic
segment
he
any
on
contrary,”
comment
smaller reasonable
no show- wished.56 “On the
the Com-
it made
Furthermore
time.
stated,
inviting
operation
ing
“its
demon-
mission
announcements
contrasting
provide
forum
views
strates a
a fair
presentation of
failure
Appendix
specifically
A
of its
a licensee
notice
times the issues
discussed,
responsibilities in
(or others)
nor of
fairness area.”57
encourage
since,
especially
adequate
This was
inception
from the
true
other
action
contrasting viewpoints
program
presentation
until the re-
Brandywine
placement
Livezey
relies
of Thomas
as modera-
issues.53
pro-
tor,
upon
resolution of the
call-in and interview
after the
certain
adverse
obliga-
Borough Council,58
grams meeting
program
its fairness
Media
*14
However,
of the
our review
tions.
discourage
to
was conducted so as
programs
these
shows that
record
viewpoints with
modera-
[the
which
purpose
inadequate
this
be-
to
were
tor], disagreed.
he
the outset
From
they
at
not directed
either were
cause
both cut off
insulted callers who
obtaining opposing
on
issues
views
did
share
This con-
not
his views.
(i.e.,
or
speakers
were
secured
duct,
Brandywine
which
presented
is-
these
in connection with
responsible,
patently
course
incon-
sues),
to dis-
or were so conducted as
requirement
sistent
with the
courage
presentation
of views
fairness.59
shared
their moderators.54
Likewise,
rejected
the Commission
daily programs
examples
Mclntire
two
contended
other
WXUR
Rev.
provide
required
efforts
had
substantive efforts
undertaken
balance.
County
compliance
doc-
The first
assure
fairness
of these was Delaware
Today60
took
form
on which
dealt
trine. This
the moderator
submission
unaccepted
opposed
invi-
letters
evidenced
with those
to his views
which
Century
“rough[ing
by “forc[ing
appear
up”
tations
on
20th
them]
give
antago
re-
them]
Commission
their views in an
Hour.
Reformation
jected
setting.”61
compli-
program
on
indicia
nistic
second
this
would-be
56.
Id.
53. We believe
remedial action subse
Brandywine’s
quent
time
re
to the
when
Id.
57.
put
is not
newal was
doubt
entitled
p. 24, supra.
weight.
Conception
58. See
See
Immaculate
Angeles
Los
Church of
Federal Com
July Decision, supra,
59.
at
11.
¶
U.S.App.
Commission,
munications
daily
program
A
interview
last-
denied,
F.2d
D.C.
cert.
day.
ed from
to 45 minutes a
196, 11
U.S.
84 S.Ct.
L.Ed.2d 145.
(Footnote
renumbered).
July Decision,
supra,
¶
at
12. The
rejected
specifically
Ex
July Decision, supra,
¶at
that WXUR should
aminer’s contention
July Decision,
supra,
given
¶
11. Bee
toward balance for invita
credit
particularly
program,
fn. 9 for
this
reasons
tions
extended
being
refused, by
fearing
“roughed
these invitations
viewed as
those
to be
inadequate.
up.”
Id.
sought
rely
way
Radio WXUR’s small
which WXUR
was
in some
staff
excul-
pated
Philadelphia62 The commencement
station for
Free
its failure to
shortly
program
of
dywine
after Bran
achieve balance in
was
fairness.
application with
filed its renewal
objective
of the Fairness Doctrine
shortly prior to the
the Commission and
filing
protect
is to
right
the listeners’
deny.
petitions
There
access
information about all sides
fore,
very
program
peri
had
brief
of controversial issues of
im-
proceeding.63
ofod
relevance to this
portance.
showing
No
has been made
de-
The Commission indicated that a
comply
inability
with fairness
programs
tailed
discussion of
requirements
because
financial
necessary
was
issues
limitations.65
both
are critical to reso-
because
The Commission
also
unmoved
lution of the
issue in this
fairness
n
Brandywine’s “alleged delegation case
nei-
the Examiner
because
responsibilities
Fairness Doctrine
sponsors
ther tied his view that
had
WXUR
producers
programs
or
put
political spec-
all
shades
(Tr. 7874-75).”66
broadcast.
par-
trum to
treatment of
the station’s
ticular controversial issues nor made a
responsibilities may
Fairness Doctrine
pre-
post-
distinction between the
delegated. Editorializing by
not be
programming. We are
renewal date
Licensees,
Broadcast
F.C.C.
social, political,
not concerned with the
1248;
“Living
see also
Should Be
religious philosophy
the licensee
Fun,”
(1962)
33 F.C.C.
using
any person
its facilities.
responsi
[T]he ultimate
right
Our interest
bility
compliance
with the Fair
opportunity
to a reasonable
ness
Doctrine rests with
licensee.
contrasting
hear
views on controver-
Manager]
Norris [the
must
General
issues;
sial
whether
have known
he
this if
understood the
by the licensee can
been accorded
*15
thoroughly
Doctrine as
as he claimed.
determined
in the context of is-
(See
1880-82.)
Tr.
1664-65
sues,
by generalized political
labels.
any event,
any
not found
particular
In the face of
attention
delegee
performed
adequately
being
necessity
drawn to the
for fair-
functions.67
ness at
station
the time control
transferred,
record
no
was
shows
The Commission
concluded
considera-
attempt
to meet the sta-
reasonable
topic by finding
tion of this
that Bran-
obligations in this
tion’s
area. See dywine
to
“was indifferent
its affirma-
Editorializing by’
Licensees,
Broadcast
obligation
encourage
imple-
tive
‘to
(1949).64
[failed us] program significant plans, and sion. also a appearance pro- con In order of new also The Commission ¶ Id. grams Lifeline; Brandywine giv were entitled: Mamón had the attention sidered Forum; Headlines; community Behind the and interests. Howard needs en Commentary; Independent However, ground denial Kershner’s since opinion Americans; Report; The Dan Smoot the Commission’s deleted in reconsideration, League America. do not discuss and Church parties findings Interested here. those II, July 81. J.A. Vol. *18 99. the ¶¶ 33-38 are directed Decision, supra. July Decision, supra, 82. at ¶ 31. (emphasis supplied). at ¶ 84. Id. Opinion on Reconsid- did not hold that [W]e H. Commission’s wrong anything per there se' in eration was harassing by moderator, conduct its memo- Commission released Brandywine rely that could not Opinion denying randum and Order85 upon for its achievement of fairness
Brandywine’s
request
reconsidera-
program
singled
one side
where
was
February 11,
central
tion on
1971. The
out for harassment.89
by Brandywine
theme
constituted
raised
proceeded
The Commission
to consider
July
an assertion that
the Commission’s
Brandywine
each
the
which
issues
concept
Decision extended
by reaffirming
raised and concluded
unconstitutional
fairness doctrine
majority
of its earlier
Let us
views.
July
was
brink
that
Decision
separately
consider each issue
as we did
predicated
upon
disapproval of the
“a
regard
July
with
Decision.
programs
on
content of
WXUR.”
The Commission commented:
1. The Fairness Issue
solely upon
based
Our decision was
petition
In its
reconsideration
concepts
constitutional
fairness
whose
Brandywine
challenged
way
in no
validity
Su-
has
sustained
been
finding
earlier
Commission’s
that de-
preme
in Red Lion Broadcast-
Court
spite Brandywine’s
representation
initial
C.,
ing Co.,
Inc.
395 U.S.
v. F. C.
strong
despite
the Commission’s
371]
23 L.Ed.2d
S.Ct.
[89
warning
decision,
in the transfer
“Bran-
any
upon
(1969)
in no
Com-
sense
dywine
encourage
steps
had taken no
content
attitude toward the
mission
presentation
contrasting
on
views
Brandywine’s
expressed
view
over
importance
several
issues
facilities.86
presented
where it had
one side
each
Brandywine
these issues.”90
con-
expressed
the view
The Commission
it had
material
tended that
Brandywine’s
af-
to meet
failure
news,
interview,
call-in
certain
duty
Red Lion
forth in
firmative
set
although
which,
never considered
shows
Broadcasting Co.,
C.
v. F.
C.87
Inc.
Commission,
satisfy
fair-
did
a reasonable
“offer
to make available
requirements
to these
doctrine
as
ness
to those who
of broadcast
time
amount
began by re-
The Commission
issues.
that which
different
view
minding
affirmative
licensee
already
expressed
on his
been
not
arena would
duties
the fairness
beyond
station”,88
pale of
was
be satisfied
Commission,
by the
constitutional
reach
by leaving
expression of contrast-
by demonstrating
merely
existence
ing
happenstance
during
views to such
time
which
of offers
person on a
contrasting
of an unknown
proponents
remarks
views
possibility
program,
call-in
or to the
stressed
harassed.
pertinent question
presentation
be asked
that a
will
this was a matter
general
program unan-
on a
interview
of content.
not one
Brandywine-
finding
Applications
not be
fairness
could
our
85.
In lie
one-sidedly
setting
Radio,
in a
hostile
Renewal of
achieved
Line
Inc. For
Main
unfairly
in the absence
considered
WXUR-
Licenses of Stations WXUR
“warning”
ruling.
(1971)
re-
Media, Pa.,
We have
FM,
aof
F.C.0.2d 565
position
Decision”).
cently
“February
same
(hereinafter
enunciated the
Broadcasting Co.,
case. Butte
another
Id. at
1f
(1970),
and we cannot
22 FCC2d 7
accept
23 L.Ed.
the sort of
89 S.Ct.
view that
'it
87. 395 U.S.
ruling
not be
a licensee could
2d
expected
anticipate in the absence of
89 S.Ct.
88. 395 U.S.
precedent.
prior
supra,
February Decision,
fn. 1.
at ¶
Id.
stating:
continued
The Commission
Brandywine
agree
Id. at
5. ¶
do We
*19
any particu-
Brandywine attempted
dealing
to have the
with
nounced as
guest
presenting
certain broadcast
Commission exclude
and not
issue
lar
they
by
responsible spokesman of
statements
Dr. Mclntire since
as a
selected
“religious.”95
contrasting
on
decision
The
view.91
attempt
which this
was founded was
stop
did not
The Commission
Letter,
Murray
The
without relevance.
juncture
on
re-
continued
to
but rather
rely,
Brandywine sought
on
which
petition-
by
cited
examine
material
only held
devotional services were
that
ers
this material
and determined that
not a
within the
controversial
issue
conflicting
expression
“an
was not
meaning
scope
doc-
fairness
viewpoints in
ratio
which
reasonable
trine;
ex-
fairness doctrine
“[t]he
(cid:127)
might make
renewal
a denial
expressions
on con-
tends
all
of views
inappropriate.”
com-
Commission
public importance,
troversial
issues
evidentiary point
with an
menced
—-the
they may
deemed reli-
whether or not
presented
the inter-
affirmative cases
gious
persons.”96
views
some
Bureau,
venors and the Broadcast
based
holding,
stated,
no
Commission
“is
program-
on
two
weeks of monitored
abridgement
more an
of reli-
of freedom
ming, placed
evidentiary
on
burden
gion
speech,
an issue
than
freedom
Brandywine
could not be satisfied
which
already
Supreme
decided
Court
by demonstrating
merely
in-
“some
supra.”97
Broadcasting Co.,
Red Lion
opposing
expression
stances
periods
Brandywine charged
also
the Commis-
views
other time
without
taking
neglected
any
expression
account of
sion had
further
consider various
original
spokesmen.
other
views
such
time
invitations
certain
periods.”93
commenting
Brandywine
pro-
replied
failed
Commission
any
concerning
disagreement
“Brandywine
duce
evidence
what was
mistakes our
during
arguments
periods
cited with its
to consid-
failure
except
spe-
to the Commission
for those
er
once
them.”98 The Commission
again
Brandywine
finding
matters
cific
on
re-
detailed its
reasons
say:
Brandywine
inadequate.
lied. The
on to
Commission
went
invitations
sundry
also discounted Mclntire’s
showing
prima,
In the face of the
facie
they did not emanate
vitations since
its treatment of certain issues
requires.
from the
law
licensee
unfair, Brandywine clearly
was
was
noted
its action
encouraged
required to show
how
primarily
inadequacy
on the
based
presentation
views,
opposing
again
offers and once
various
presentation
at least that
of such
spoke
Brandywine's practice
of dele-
propor-
views constituted a reasonable
gating
responsibilities
under
issues,
tion to the time devoted to the
fairness doctrine:
throughout
period
either
or,
license
during
minimum,
Certainly
at the
oth-
some
Dr. Mclntire had
if
made
representative period
corresponding
er
adequate
time.
invitations
Therefore,
getting
we adhere to our
succeeded
the issues
spokesmen
had
Brandywine
opposing
viewpoints
conclusion
only
failed
with
opposing
Brandywine
speak
program,
seek some
balance
his
carry
rely
opposing
upon
views but to
views
able
been
complying
fair ratio.94
success in
the fairness
Brandywine
sought
argu-
91.
Id.
6.¶at
95.
to base this
ment,
rejected,
which the Commission
92.
Id.
Madalyn
Murray,
41
(1949).
1246
The broadcaster must
Radio
sequently,
Federal
Commis-
give adequate coverage
fre-
is
sion was
to allocate
established
Broadcasting
sues,
Co.,
among competing applicants
United
10
quencies
F.
coverage
(1945),
pub-
responsive
C.C. 515
must be
a manner
accurately
“convenience,
neces-
fair in that it
reflects the
interest,
lic
116
Broadcasting
opposing
sity.”
continued:
The Court
views. New
Reg.
Co.,
(1950).
P & F Radio
258
6
shortly
Very
Com
thereafter
must be
This
done at the broadcaster’s
expressed
its view that
mission
expense
sponsorship
if
own
is unavail
play
requires ample
“public interest
Broadcasting Co.,
Cullman
25 P
able.
competition of
and fair
the free
Reg.
(1963).
& F Radio
895
More
views,
opposing
commission
over,
duty
by pro
met
must be
principle applies
believes that
gramming obtained at
the licensee’s
issues
to all discussions of
own initiative if
available
no
public.”
importance
Great
Dempsey,
other source. John
P
J.
6 &
Broadcasting Co.,
Lakes
3 F.R.C.Ann.
Reg.
(1950);
F Radio
615
see Metro
Rep.
(1929),
other
32,
rev’d on
33
politan
Corp.,
Broadcasting
19 P
F&
grounds,
App.D.C. 197,
F.2d
59
37
Reg.
(1960);
Evening
Radio
602
706,
993,
dismissed,
50
281
cert.
U.S.
Assn.,
Reg.
6
News
P & F Radio
283
467,
S.Ct.
74 L.Ed.
(1950). The Federal Radio Commis
through
applied
denial
doctrine
imposed
sion had
two basic du
per
license renewals or construction
outset,
ties on broadcasters
since
mits,
FRC, Trinity Meth
both
Broadcasting Co.,
Great Lakes
C.Ann.Rep.
3 F.R.
Church,
FRC,
App.
odist
South v.
(1929), rev’d
on other
311,
(1932),
de
D.C.
the Commission
right of
straint.
protecting the
in
ble instrument
on con
fully informed
public to
the
be
complaint
in
passing
any
troversial
issues.”
area,
not
is
the Commission’s role
judgment
of the
for that
substitute its
pro
the
is
as to
of
above
fairness
doctrine
licensee
The
application.
decisions,
gramming
de
subject
but rather
formulistic
to a
obligations
only be
can be
Meeting
termine
the licensee
can
whether
the
reasonably
seeking
in
and in
out balance
said to have acted
achieved
good
coverage.
room for
There is
mathematic
faith.
thus
Precise
considerably
on the
required
desira
more discretion
equality
nor
is neither
part
the fairness
of the licensee under
of the doctrine
The
ble.
cornerstone
“equal opportunities”
good
doctrine than under
requir
discretion.
faith
licensee
ement.126
fair-,
licensee,
applying
in
[T]he
seeking
require
meet
Licensees
doctrine,
upon to make
is called
ness
imposed
must
doctrine
be
ments
good faith on
judgments
reasonable
Congressional
It was
mindful
intent.
of
situation —as
the facts of each
Congress, or
never
either
intended
public
a controversial
issue
whether
Commission,
work
the doctrine
involved,
importance
to what
as
suppression
toward
of the discussion
viewpoints
or should
have been
contrary
To
controversial
issues.
presented,
format
drafters
intent
viewpoints,
present
spokesmen to
“[require]
of conflic
the discussion
such
other
facets
ting
public importance.”
and all
views on
issues
programming.125
12
F.C.C.,
Committee v.
National
June
Commission
Democratic
On
(footnote
supra
adopted
Inquiry
at
In the Matter
460 F.2d
Notice
renumbered).
Handling
of Public
Under
Issues
In-
the Fairness Doctrine and the Public
Doctrine,
Applicability of the Fairness
Communications
terest Standards
Fed.Reg.
supra,
40 F.C.C.
Act,
In the words
F.C.C.2d
at 599.
:
the Commission
general
theme was
126. Id. This
same
purpose of
this Notice is to in-
espoused by
earlier
the Commission much
broad-ranging inquiry
into the
stitute
efficacy
Licensee,
Editorializing
Broadcast
fairness doctrine and
(1949) :
public
F.C.C.
jjoli-
other Commission
interest
cies,
light
of current demands for
recognized that
can
It
there
should be
access to the broadcast media to consid-
embracing formula which
be no one all
er issues of
is im-
concern.
hope
apply
can
to insure
licensees
portant
to stress that wo
here-
representation
balanced
fair and
by disparaging any of the ad hoc rul-
all
Different
issues will
issues.
ings that
we have made
these areas.
inevitably require
techniques
different
Rather,
feel
time
has come for
presentation
production.
an overview to determine whether the
will in each instance be called
licensee
policies
largely
derived
from these rul-
judgment
upon
his
to exercise
best
ings
or,
should be retained
intact
good
determining
what sub-
sense
greater degree,
lesser
modified.
.
jects
considered,
particu-
should be
parties may
[any
Interested
address
as-
programs
lar
to be de-
format of
pect
problem.]
subject,
the different
voted to each
Thus, it is
clear
presented,
opinion
shades
seeking
efficacy
to maintain the
point
spokesman
for each
of view.
*27
guaranteeing adequate
while
doctrine
ac-
Id.
1251.
at
the
cess to
controversial
issues.
encouraging
Loevinger,
Speech,
is
note
the Com-
Free
Fairness and
sought widespread in-put
Fiduciary Duty
Broadcasting,
mission has
34 Law
formulating
crucially
thinking
Contemp.Prob.
(1969).
278,
285
important area.
Supreme
spelled
out the du-
the
Court
current
In
state of the law.
Green
possi-
C.,131
involving requests
ties of the licensee in the clearest
F. C.
v.
a case
oppose military
ble terms in Red Lion.
for
time to
enlistment
waves,
on the air
give adequate
The broadcaster must
coverage
Judge
issues,
Wilkey
the
wrote
doctrine
coverage
require
must
fair
in that
did not
be
identical
treatment
for
differing
accurately
viewpoints
opposing views.
the
controversial
reflects
issues,
place
This must
done at
the
“as this would
be
an onerous
expense
sponsor
impractical
own
if
broadcaster’s
burden on
licen
C.,
ship
supra,
is
.
. More
sees.”
v.
unavailable.
.
Green
F. C.
over,
duty
by pro
U.S.App.D.C.
must
met
be
at
F.2d
at 328.
gramming
In
obtained at
addition we made it
licensee’s
clear that un
own initiative
if available
from no
like those
corollaries
doctrine
equal-opportunities
other source.128
that create
situa
tions the doctrine
does not cre
itself
pause
Let us
for moment
reflect
any person
group
ate a
for
or
litigation.
Red Lion
The case
granted
be
time.
“[T]he
licensees
alleged
arose out of an
breach
judgment
their
exercise
as to
personal
attack doctrine.
The attack
presented
by
what material
is
opinionated
came in
form of an
whom ....
doc
The fairness
by
Billy Hargis, who also
broadcast
Rev.
issue-oriented,
trine
and would be
frequently
Red
on WXUR.
sufficient
if each licensee could show
Lion,
managed by John H.
which was
point
by
of view advocated
WXUR,
Norris,
manager
the station
petitioner
.
. had been or was
requirements
failed
meet
being presented
on its station
oth
fol
Commission which
licensee must
opinion
ers.”
In our
Id.
Business
personal
low in the event of a
attack.
Executives’
Move
Vietnam Peace
requirements,
These
which are set out in
supra
C.,
U.S.App.D.C.
v. F. C.
[146
Broadcasting Co.,129
Times-Mirror
call
642],
181, 450 F.2d
we held that
upon
tape,
the licensee to send a
tran
permissive
‘reasonable
“[u]nder
script
summary
of the broadcast con
ness’
standard
fairness
doc
taining
wronged party.
the attack to the
trine, acceptance
particular
for
[a]
ag
required
The licensee is
to offer the
compulsory.”
Id.,
mat is
no means
grieved party
opportunity
respond
U.S.App.D.C.,
at
of 146
at 648 of
opportunity
and must see that
Thus,
opinion
450 F.2d.
after
regard
made without
whether
opinion
the Commission
response
paid
time will
for.
degree
courts have stressed
wide
opinion of this court
in Red Lion130 we
of discretion available
the fair
under
great
lengths
went
to set out all
clearly stat
ness doctrine and we have
correspondence
between the Commis
time,
ed time
ad
ad
after
infinitum
sion and
Our account
runs on
Norris.
nauseam,
key
to the doctrine
pages.
despite
Yet
in
all of the
mystical
no
formula but rather
struction
received
re
Norris
he
exercise of
reasonable
standards
incapable of,
unwilling to,
mained
F.
the licensee. See also Neckritz
comply
requirements
with the
in either
(9th
C.,
F.2d
Cir.
C.
currently
Red Lion or the case
under
1971).132
consideration.
jurisdiction
The recent eases in our
is re
We reiterate —all
setting
adequate
balance;
quired
equal opportunities,
than
out
more
Lion, supra,
377-378,
Supra,
Red
U.S.
note
for controversial opinion nally, Supreme in Court’s intent the established of detriment recognizes significantly Red Lion As Congress and the Commission. Report Editorializing statement previously noted: the Commission principles in the embodied of the basic long the different stressed We have su- Red Lion See fairness doctrine. “equal opportu- which the manner pra pp. S. [89 384-386 U.S.] [395 requirements of fairness nities” and 1794].134 Ct. is operate. former Section is reason- this The ultimate test area facil- only to uses of station applicable whether critical issue is public office ableness. “The by candidates for ities efforts, of the licensee’s equal to the sum total treatment —as calls for plans taking afforded, his when into account to be of time the amount continuing said slot, one can be It thus issue a time of the etc. nature opportunity to reasonable virtually constitute a mathematical with works contrasting public on the inform the contin- precision.133 in the viewpoint is fair ued: —one circumstances.” Congress the fairness codified inserting doctrine, provision in pointed As the Fourth Circuit 315(a) licen- that broadcast Section deciding recently, the first line for out operate in inter- “must sees good faith fairness cases is the afford reasonable . . est and therefore, is, here licensee.136 con- opportunity discussion for the begin analysis. our we must flicting issues on controversial views Brandywine record confer- importance.” The Main Line Radio is bleak the area this was report makes clear ence Brandywine’s good best, At Congressional faith. “restatement a regard of a lack record is indicative policy of fair- of the ‘standard basic daily ety programs Broadcasting and con- on the Fair Committee for Further, tinuing Issues, it would involve basis. 25 F.C.C.2d Controversial deeply original). (1970) (emphasis much too this Commission journalism ; Broadcasting, would indeed for Fair In Committee virtually part broad- supra, become casting the Commis- 25 F.C.C.2d at overseeing estate,” supporting thou- “fourth explained its reasons sion complaints had that some issue sands the doctrine: “equal given We treatment.” not been extended We do not believe profound why na- do not believe the li- is needed as to discussion principle that commitment to the tional discretion is afforded so much censee public, be “un- should issues In our debate fairness doctrine. under robust, wide-open” (New inhibited, experi- judgment, on decades of based Sullivan, field, v. 376 U.S. York Times Co. sound ence L.Ed.2d way general policy. [84 S.Ct. proceed as a A general promoted 686]) contrary approach equal opportuni- would be requiring equal policy treatment ties, applying issues to controversial governmental issues, generally opportuni- with specific equal all such mathematical insure such tervention to requirements political ties candi- equality. practice dates would in not be work- omitted.) (Footnote inhibit, able. It would rather than promote, presenta- discussion original). (emphasis in See 134. Id. at 293 tion of issues in the vari- controversial generally Cong.Rec. 12502-04. program g., (e. ous broadcast formats interviews, documentaries). newscasts; 135. Id. at 295. just practicable require For F.C.C., equality respect Company large num- 136. Larus & Brother great supra, ber issues dealt with vari- F.2d at 879. *29 principles; worst, simply do, for fairness it It will not Dr. Mclntire. legal only shows an utter disdain for Commission does not meet ignores rulings responsibili- “fairness”; its own definition of but it does representa- significant ties as and its not meet broadcaster far more very by tions to the At Commission. standards set conscience by Brandywine outset was informed men. Decision, in Commission, Borst Collingswood, No, I will not to come obligations of the licensee under though pleasant it is otherwise a town. per- both the fairness and the doctrine argu- give your I will not to credence principle. sonal attack This action was appearance oppo- ment that one necessary in made the first instance be- answering anything say you may nent many so in cause of the fear of the com- your adequate is to balance incessant munity. apparent It is now that drumfire of disunion and hate. fear was warranted and well founded. you wish, supply you If we will During Brandy- period license the entire tape tapes program with a of full willfully disregard wine Com- to chose length telling the truth about mission mandate. With more brazen policies, union movement and its trade brains, Brandywine bravado than went you your which can alternate with broadcasting independent on an frolic daily your commentaries, own on time chose, chose, any what it in terms it —which, remember, my time, let us abusing who with dared differ its those too, belongs air [the] since all.137 us viewpoints. replete This record example example pre- after one sided replied Dr. Mclntire November sentation controversial im- issues 1965 in these terms: portance public. is not neces- completely misrepresented You have sary for this court recount these mat- my invitation, misunderstood as I again ters here. The Commission has imply your appear- did not even that amply supports done so record response your upon ance attack penultimate their contentions to the de- right.” everything me would “set As gree. to the FCC’s “fairness doctrine” and Rev. Mclntire’s attitude toward the legal definition, the FCC has made rights fairness doctrine and plain it this so-called fairness general is made clear con- play specific doctrine comes into aon sidering following excerpts from an only when an individual’s exchange correspondence between integrity attacked, character Zack, Mclntire and Albert Director of J. but a one’s and the discussion views Public for the Relations AFL-CIO. Let position he in our holds nation- which excerpt us first consider this in a letter proper legitimate al is a sub- life from Zack to Mclntire, on Novem- sent ject protections debate under for 5, 1965, response ber Mclntire’s guarantees freedom of appear vitation for Zack Cen- on 20th speech and reli- the free exercise of tury Hour: Reformation gion My of- First Amendment. Day program pro- day, after after beyond you actually fer to went gram, you expound point of view “legal” definition . . of fairness. . contrary mine, which is not Americans, and that of most grossly concepts private- offends the Radio stations are propose ly possible Christian You now owned and the dis- ethics. everything right asking private set me of radio for inter- semination Collingswood speak come to re- ests to contract time —which ply anything Century you say concern- the 20th Reformation Hour ing time, me. has done. This which we IV,
137. J.A. Vol.
yours;
their
does
the number of
pay,
nor
and to increase
and not
is ours
belong
dec
obli-
the loudness
their
use with an
converts
to both
*30
equally
of their
gation
larations and the bitterness
upon me to share it
appear to
that
you.
me
invectives.140
would
with
you
It
call a rather
I would
have what
At
is
here.
the risk
This what we have
regard.138
in this
socialistic view
assisting
in his
of
self-martyrdom,
Mclntire
bid
Rev.
examples
many
give
his
we note that
behav-
more
could
We
case,
of a
so
weighty
in
ior is reminiscent of that
not
record
from the
knight-errant
Quixote
purpose
legendary
however,
to see what
named
we fail
riding
exchange
engaged
cited —who
himself
The
that would serve.
against
ei-
Mclntire
otherwise harmless wind-mills.
it clear
above makes
fairness
actions
the
the
The
taken
understand
ther did not
ignore
merely
with reference to both
Mclntire
Rev.
or
doctrine
chose
supported by
twisting
his
re-
meet
own
WXUR are more than
the law to
Attempting
place
the re-
record.
quirements.
attributes
the
the
Mclntire
per-
to the
on
the
quirements
doctrine
blame
the Commission for
short-
of the
Certainly,
comings
the doc-
broadcaster
rules.
sonal attack
and/or
im-
as this would
licensee
not
limited
not
do
trine is
so
will
do.
parties
requires
when
ply.
balance
towell
remember that:
The doctrine
pub-
dealing
controversial issues
Brutus,
fault,
The
dear
in our
importance.
the extent
lic
This
stars,
fairness.
ourselves,
in
But
that we
Throughout
pendency
these
underlings.141
attempted to
appellants
proceedings
wiles, Brandywine
Left to
own
their
this case
the actual issues
obfuscate
and Mclntire would set the
Drl
fairness
injecting
relat-
issue
a smoke-screen
doctrine to
not so solemn se-
rest
Century
ing
20th
and his
Mclntire
regard
pulchre
right of
without
Throughout
Hour.
Reformation
community
fully
informed.
be
to stations
find references
record we
support
could not
Com-
record
program
cancelling
because
Mclntire
findings
mission’s
in this area more
doc-
fairness
requirements of the
of the
strongly.
suggestion
indeed,
and,
trine
that the Commis-
than once
fused more
III.
ATTACK DOC-
PERSONAL
get” the Reverend.
was “out
sion
Certainly,
TRINE
is central
of this
none
area is well set
in this
relevant.
law
of it is
little
case at bar and
is an
made
Whenever there
attack
to childish
tled.
amount
These incantations
charges
person
group
of a
context
cloaking
By
prattle.
importance
public
clothing
controversial issue
amendment139
of the first
right
right
conjure
has a
to re
individual
attempts
attacked
Mclntire
spond.
is extended
the ba
simply
does
the Constitution
which
provide.
authority—
separate
said
sis
two
lines
Hamilton
Alexander
As
holdings
Lion and Times-
in Red
setting:
in another
Broadcasting Co.,
on the ba
Mirror
op-
judge
conduct
To
from the
regulations.142
Commission’s
sis
to con-
led
posite parties,
shall be
gen
obligations
hope
mutually
differ from the
These
will
clude
requirement
issues
opinions,
justness eral fairness
their
evince
Papers,
sup-
Hamilton,
Federalist
IV,
(emphasis
140. A.
813-14
138. J.A. Vol.
plied)
No.
Caesar,
Shakespeare,
Act
appellant’s
Julius
first
amend-
141. W.
139. We consider
V,
line 134.
Sc.
ment contentions
Section
infra.
§
C.F.R.
73.123
presented,
presented
with cov- must
carried out
intere
erage
competing views,
in that the
st.149
option
does
broadcaster
not have the
This mandate to the
FCC
assure
presenting
party’s
side
attacked
operate
broadcasters
choosing
party
himself
third
one,
power
interest
is a broad
“not
represent
But insofar
side.
niggardly
expansive,”
National
obligation of
there is an
broad-
Broadcasting
States,
v. United
Co.
caster
see that both sides are
190, 219,
U.S.
63 S.Ct.
87 L.Ed.
presented, and insofar as that
is an
(1943),
validity
whose
we have
obligation,
personal
affirmative
long upheld. FCC Pottsville
*31
v.
Broad-
regulations
attack doctrine and
do not
casting Co.,
134, 138,
309 U.S.
60 S.Ct.
preceding
from the
differ
fairness
437,
(1940);
148. Id.
¶at
obliged to
size of
We
re
the small
its staff.
ly
cause
the individual
way
then,
tape
note that
and,
he had
small staffs
no
excul-
even
quest a
pate
du-
licensees from their affirmative
difficulty.155
Brandywine
incapable
would be
ties.
Brandywine’s
This is a demonstration
degree
engineer;
operating
an
without
similar-
regard
per-
compliance
ly,
person
protect
suitable
al-
reviewed the
We have
sonal attacks.
rights
listening public is
a neces-
many
leged
find
in this case and
attacks
sity
part
This
licensee.
honesty,
upon
char-
of attacks
instances
acter,
expense
operating
a radio station.
quali-
integrity
personal
and other
Any
argument
contrary
economic
groups
persons
given
ties of
sight
purposes
loses
of Commis-
is-
of controversial
discussion
course of
regulation.
sion
importance.
we find
Yet
sues
Brandywine’s
tapes, that
second assertion is even
did not send
licensee
that the
transcripts,
less
did
valid.
John
testified that
Norris
not send
it did
anyone
respon-
the station did not have
Is this the
listen
not send summaries.
program tapes prior
licensee?
earnest
to broadcast as this
sible behavior
censorship.157
act would constitute
regard to the
case with
As was
*32
argument
the sensibilities of the
offends
doctrine, Brandywine
in-
was
fairness
court for various reasons. This is
pri-
personal
responsibilities in
of its
formed
despite
evidence that
the nu-
ma
at
the Commission
facie
situations
attack
lengthy
merous
assertions
li-
approving
initial trans-
the
the time
Commission, Brandywine
censee to the
Brandywine represented to the
fer.
comply
per-
never intended to
with the
understood
Commission
Any representation
sonal attack rules.
responsibilities
by the
would abide
contrary
part
to the
on the
licen-
the
Commission
placed
the
them. As
only
gra-
sees can
be said to constitute a
stated :
design
tuitous
to
intended
lull
Com-
the
is that
conclusion
The unavoidable
feeling
security.
mission into a
plain
ignored
simply
Brandywine
its
Brandywine has dealt with the Commis-
note
duty
public.
.
.
.We
to
setting
only
in
sion
which not
lacked
violations,
again
al-
here
good faith but was also meant to de-
though they
the same
would warrant
regard
fraud the Commission with
to
particu-
any event,
in
conclusion
the licensee’s 'actual
intentions in this
light
larly
of the fact
reprehensible in
Brandywine
area.
was aware of the
at
cautioned
had been
that the licensee
personal
acknowledged
rules,
attack
it
concerning
duties in this
its
outset
responsibility under
them
then
area.156
disregard
guise
to
them under a
chose
attempted
Brandywine has
claiming that the
constitued licen-
rules
obligations
in this area
pass
its
censorship.
maneuvering
see
Such
purchase
licen
time from the
those who
proven
gamesmanship
so wise
regard.
in
law is clear
The
this
see.
part
Brandywine’s
on the
of licensee.
obligation
squarely on the
rests
The
abuses
this
so
area are
as to
blatant
fact that
shoulders of
licensee.
be sufficient to
shock
conscience of
in avoidance
to act
licensee decided
every
the court. The Commission had
delegate
seeking
obligation by
of this
findings
justification
regard
for its
non-delegable duty
indicia
another
personal
to the
attack rules.
failings
Brandywine’s
under the law.
IV. BRANDYWINE’S PROGRAM
Brandywine’s
fully
two
understand
We
REPRESENTATIONS
Firstly,
pronged
in this area.
defense
aspect
ease,
incapable
while
Brandywine
claims
troublesome,
clearly
most
screening tapes
prior be-
74, supra.
157. See footnote
Id.
Id.
¶
disturbing
fore, Brandywine sought through
The facts
most
the court.
sub-
terfuge
area,
gain
pro-
as with the other areas
its
license
then
clearly
case,
out
type
set
ceed
broadcast the
of material it
Brandywine
type
made exten- believed to
Commission.158
be most
suitable—the
representations
sive
to the Commission material which would
forward
ends
types
programs
about
to be
the fundamentalist
ut-
movement—in
disregard
broadcast,
providing specific,
ter
as well as
for either
typical pro-
representations
their earlier
Variation from
titles.
gram
Com-
presented
not have mission.
schedule
changes
proven
been fatal if
atively
had
rel-
misrepresentation
The second
concerns
imple-
they been
minor or had
previously
Inter
Forum.
haveWe
faith
good
Unfortunately,
mented
faith.
length160
described the show at
need
surprisingly,
but not
neither was
simple
not reiterate here. The facts are
case.
appeared
—when
quiry
approach
that a
more balanced
changes
place on
took
which
religion
necessary
question
days
very
WXUR within
first
fol-
principal parties
Brandywine
de-
lowing the transfer
a common de-
show
program.
vised this
record
shows
sign
part
on the
en-
the licensee to
being
after
censured
gage
obtaining
trickery
deceit and
government
local
did the
make
licensee
days
a broadcast license.
Within nine
program
effort for this
to be broad-
totally unexpected group
pro-
of seven
cast,
finally
and even when it
found
grams, each of a nature different
than
way to the airwaves its content was with-
schedule,
typical program
those
representations
out resemblance
those
programs,
were on the air. These
*33
to
made
the Commission. This was
characterized
Norris
as the “Hate Clubs
dialogue
never
interfaith
but rather
Air,” replaced programs
of the
program
an interview
of students and
predominantly
were
ori-
entertainment
faculty
Theological
Faith
the
Sem-
speed
ented. The
with which these
inary. We find no fault with
a
such
changes
place
took
can
the
to
lead
court
program
fail to
how it
but we
see
com-
one conclusion
one conclusion
plies
Brandywine’s representations
with
n —
Brandywine
place
intended to
these
dialogue
for
between the faiths.
programs
controversial
air
the
from
legal
applicable
The
standard here was
the first but
to
the
feared
so inform
by
Supreme
laid down
the
Court over
application
Commission lest the transfer
twenty-five
ago.
years
In another com-
approach
be denied. This
was foolish.
the
case
Court said:
munications
As the
in the
Commission stated
Borst
may
Decision and
in
as we stated
this
earlier
The fact of concealment
more
be
opinion,
significant
than the
concealed.
facts
willingness
regulato-
a
deceive
wisely
Commission is
[t]he
forbidden
ry body
by
may
disclosed
immateri-
choosing “among applicants
deceptions
al and
as well
useless
as
political,
of their
basis
economic
persuasive
material and
ones.161
or social views.”159
dispositive
This is
issue.
this
representation
The initial
to the Com-
obviously
mission was
a
“a
foot for-
This is
case in which the
best
ward”
in
effort
for
radio
the Phil
the licensee. The licen- blind need
a
outlet
adelphia
experienced
keep
see feared that the truth
has led
market
men
being granted
industry
misrepre-
license from
in
it.
the broadcast
There-
pertinent
program
p.
a
For
oí the
facts
described
discussion
This
supra.
pp. 33,
38, supra.
see
34 and
15, supra.
WOKO,
Inc.,
U.S.
See note
F.C.C.
213, 215,
L.Ed.
67 S.Ct.
Perspective
A. Historical
attempt to deceive
facts and
sent the
single
body
a
end—
philo-
regulatory
all to
Speech
a
Free
1. Freedoms of
their
propagation on the media
Press
dogma.
have
sophic
men
These
original
the federal Con-
draft of
highest
their
for
possessed
aims
was, curiously enough, silent on
stitution
aims were blind
these
cause but
press.
question
freedom
Misrepre-
general public.
needs of
among
say “curiously”
because
We
burning
soap-box
a
to win
conceived
sentations
and the
of the revolution
issues
views
one’s
to shout
from which
quest
freedom
colonial
over-exaggeration
liberties
of the
basest
Zenger,
plight
had
of Peter
who
been
guaranteed
first
amendment.
right,
taxa-
denied this
the issue
a
commod-
the airwaves are
scarce
Since
ity
great
press.
tion
So
con-
trust
have been deemed
America
Alexander Hamil-
cern of
easy
that Dr. Mclntire
it is
for us
see
prompted to
the follow-
ton was
write
right
every
and his followers have
ing:
Their
their views
be broadcast.
liberty
subject of
On the
operate
no different
radio station
press,
said, I
as much as has been
can
rights
any
group in
other
than the
adding
a remark
two:
forbear
rights
supe-
are neither
Their
America.
observe,
place,
I
there
first
seeking a broad-
rior nor
inferior.
syllable concerning
same
station
had
cast
requirements
meet
State;
constitution
this
seeking
anyone
li-
else
next,
contend,
I
that whatever
requirements
The first
cense.
other
been said about
representations
honesty in
is candor and
sig
nothing.
What
State amounts
fail-
Their dismal
to the Commission.
liberty
declaration, that “the
nifies a
regard
ure
is evidenced
inviolably pre
press
shall
men,
8,000 page
with
These
record.
liberty
What is the
served”?
deliberate and
their
toward
hearts bent
press ?162
deception,
premeditated
cannot be said
response
complaint
to Hamilton’s
fairly
dealt
the Commission
coming.
wrong
long
was not
Philadelphia
people in
area.
or the
immediately
was remedied almost
series
Their
constitute a
statements
*34
first amendment to the Constitution.
which,
misrepresentations
even
heinous
case,
in this
without the other factors
AMENDMENT 1
justification
ample
the
would be
Congress
respecting
shall make no law
to renew the
refuse
Commission to
religion,
pro-
an establishment of
or
license.
thereof;
hibiting the
or
free exercise
abridging
speech,
of
or of
freedom
the
CONSID-
AMENDMENT
Y. FIRST
right
press;
peo-
the
or of
of the
the
ERATIONS
assemble,
ple peaceably
peti-
and
tion
of
the Government for
redress
aspect
this case
The most serious
grievances.
speech
to the
freedoms
relates
basic
following passage from
Blackstone’s
guarantees
press
are essential
which
most
Commentaries is
instructive:
This is the
of the first amendment.
greatest
liberty
is,
press
indeed,
court.
concern to the
es-
area of
state;
Any shortcomings
ne-
in
to the
of a
this area
sential
nature
free
reversing
laying
previous
in
our
the decision
but this consists
no
cessitate
publication,
only
upon
in
must
and not
the Commission. Not
restraints
the case
for criminal
look at
freedom
censure
Commission take
hard
Every
light
published.
free-
in this
matter when
must
court.
but so
Hamilton,
Papers, No. 84.
Federalist
A.
right
lay
man
an undoubted
litical
interest.
The Massachusetts
pleases
guaranteed
what sentiments he
before
Constitution of 1780
free
public;
this,
destroy
speech; yet
to forbid
is to
there are
of at
record^
press;
but
if he
freedom
least three
political
convictions for
li-
publishes
improper,
what
is
mischie-
bels obtained between 1799 and 1803.
illegal,
vous,
Pennsylvania
or
must take the con-
he
Constitution of 1790
sequence
temerity.
of his own
To
and the Delaware Constitution of 1792
subject
press
expressly imposed
restrictive
liability
for abuse of
power
formerly
licenser,
right
speech.
as was
of free
Madison’s
done,
put
both before and since
revolu-
own State
on its
books
1792 a
tion,
subject
confining
tois
all freedom of senti-
statute
the abusive exercise
prejudices
man,
right
ment
to the
of one
of utterance. And it de-
arbitrary
and make him
writing
and infal-
serves to be noted
judge
points
wife,
lible
all controverted
John Adams’s
Jefferson did not
government.
learning, religion
rest his condemnation of
Sedi-
(as
punish
But
the law
tion
does at
Act of
his
un-
belief on
'
dangerous
present) any
political
or offensive
restained
utterance
as
writings, which,
published,
when
shall
Amendment,
matter.
The First
he
impartial
argued,
on a fair and
trial
ad-
upon
reflected a limitation
judged
pernicious
tendency,
power,
leaving
of a
Federal'
necessary
preservation
speech
enforce restrictions on
to the
**
*165
peace
good order,
government
per-
States.
“The law is
religion,
only
fectly
settled,”
solid foundation
well
this Court said
liberty.
fifty
of civil
years ago,
Thus the
will
over
“that
the first
free;
individuals is still left
Constitution,
abuse
ten amendments to the
object
free
commonly
will is the
Rights,
known as the Bill of
legal punishment.
any
Neither
re-
any
lay
were not
intended to
down
hereby
upon
straint
laid
principles
freedom
novel
government,
thought
inquiry;
liberty
private
simply
embody
guarantees
certain
left;
sentiment
is still
the disseminat-
immunities
we had inher-
making
ing,
public,
English
of bad senti-
ancestors,
ited from our
ments,
destructive
ends of soci-
immemorial,
which had from time
ety,
society
cor-
subject
the crime which
well-recognized
been
to certain
arising
rects.163
exceptions,
from the necessi-
incorporating
ties of the case.
common
law Blackstone’s
principles
into the fundamental
time. The framers of the first amend-
law, there was no intention of disre-
change
ment
devoid of
intent to
garding
exceptions,
which contin-
respect.
common
law
Mr.
recognized
ued to
if
had
*35
provides
Justice Frankfurter
an excel-
formally expressed.”166
been
That this
Dennis,164
opinion
lent lesson in
in
his
represents
the authentic
view
The historic antecedents of the First
Rights
spirit
Bill of
in
and the
which
preclude
Amendment
notion that
recog-
it must be construed has been
purpose
give unqualified
its
was to
im-
again
again
nized
in cases that
munity
every expression
that touch-
fifty
have come
within
here
the last
range
ed
po-
on matters within the
years.167
Blackstone, Commentaries,
163. 4 W.
Id.,
524,
874,
*151-
341
U.S.
71 S.Ct. at
(emphasis
(footnote
original)
52
in
citing
omit-
Baldwin,
Robertson
v.
165 U.S.
ted).
275, 281,
326, 41
17 S.Ct.
L.Ed. 715
(1897).
States,
164. Dennis v. United
341 U.S.
(1951).
71 S.Ct.
55
true;
pairment
subsequent
as to the
false
the States.”172 Within two
may
years
punishment
as
accepted
extend well
this dictum became
doc-
as to
This
law
speech173
true
the false.
was
trine as to freedom of
Four
apart
years
of
from
in
criminal libel
statute
press
later freedom of the
cases,
incorporated.174
most
if not
Common
all.
supra;
Blanding,
Bl.
v.
ubi
4
wealth
Censorship
2.
Com. 150.168
unqualified
appear
This
to be an
Let us also consider the first amend-
espoused
of the views
endorsement
concept
censorship
ment and the
of
—an
However,
Holmes
Blackstone.
Justice
implicit
issue
this case.
opinion,
same
“There is
remarked
Murphy
Chap-
Mr. Justice
asserted
right
gener-
no constitutional
to have all
linsky
Hampshire:175
v. New
propositions
adopted
al
re-
of law once
unchanged.”169
1922,
main
As
late as
There are certain well-defined
nar-
speaking
Court,
through
rowly
Mr. Justice Pit-
speech,
limited
of
classes
ney,
prevention
punishment
stated:
the Fourteenth
“[N]either
of which
any
provision
Amendment
any
nor
other
thought
have never been
to raise
Constitution
problem.
the United States
Constitutional
These include
upon
imposes
any
obscene,
profane,
States
restriction
the lewd and
speech’
‘liberty
libelous,
“fight-
about ‘freedom of
insulting
or the
or
ing”
very
silence’.....”170
words—those which
their
injury
utterance inflict
tend
country
Eventually the citizens of this
peace.
cite an immediate
breach
given
long sought protections
those
It has been
ut-
well observed that such
rights.
personal
for substantive
part
any
terances
no
are
essential
by identifying
rights
was achieved
exposition
'ideas,
of such
and are
“liberty”
which
were with-
States
slight
step
social value as a
to truth
abridge
powér
proc-
out
without due
may
benefit that
derived
ess of law. This disclosure was made
quite casually by
clearly outweighted by
from
them
Supreme
Court
the social
interest
order
the landmark decision of Gitlow New
v.
morality.176
present
purposes
York.171 “For
speech
Similarly,
Virginia
do assume that freedom of
in West
State Board
press
protected
and of the
of Education v. Barnette177
Justice
Mr.
—which
abridg-
by the First
Amendment
commonplace
Jackson
“a
established
by Congress
among
ment
the fun-
censorship
suppression
expres-
—are
rights
principle
damental
opinion
and ‘liberties’
sion of
is tolerated
our Consti-
protected by
process'
the due
clause
expression presents
tution
when the
danger
the Fourteenth
present
Amendment from im-
a clear and
of a
action
Colorado,
454,
168.
v.
Minnesota,
697,
Patterson
U.S.
205
174.
v.
Near
U.S.
51
283
556,
462,
557,
625,
(1931).
27 S.Ct.
broadcasting,
physical
subversive
where the
make this
limitations of the medium
Red
B.
First Amendment and
Lion
to all
of communication
form
unavailable
it,
rights
speech
sanc
free
and free
who
would utilize
Court
coupled
power
press
of selec
with the fairness doctrine
tioned the Commission’s
licensing.182
hand,
Supreme
and
sion,
Court’s Red
deci-
tive
On the other
Lion
position
re
one of the most
had
written-about
the Court’s
until
been
516, 538,
315,
Id.,
633,
L.Ed.
65 S.Ct.
89
430
319
63
at 1183.
U.S.
S.Ct.
(1945) ;
York,
v. New
334 U.S.
Saia
Griffin,
444, 451,
v.
Lovell
303 U.S.
558,
(1948).
1148,
S.Ct.
57 response The first In areas in the law direct to the first amend- today.185 dealt the ment amendment issue was claims raised broadcasters Supreme part Red Court in three of the the Court stated: explained Court Lion decision.186 substantially Where there are more as follows: broadcaster’s contentions individuals who to want frequencies allocate, than there to contention First Their is that unabridgeable posit is idle to an protects to Amendment their desire right First Amendment to broadcast frequencies their continu use allotted right comparable every to the indi- ously they to broadcast whatever speak, write, publish. vidual or . . . choose, and to whomever exclude purpose It is the of the First Amend- using frequen choose from ever preserve ment to mar- uninhibited cy. prevented No man from ketplace of ideas which truth will saying thinks, publishing what he ultimately prevail, rather than coun- refusing speech in his or oth monopolization tenance of that mar- give weight equal er utterances ket, whether it be the Govern- opponents. the views of his private ment itself or a licensee. . right, they say, applies equally to re- broadcasters.187 social, politi- ceive suitable access to challenges These first amendment cal, esthetic, moral, and other ideas rejected Court experiences crucial unanimously.188 fact, In Mr. found that Justice White here.191 application fair- Commission’s found, The Court and of course we ness doctrine enhances than rather agree, it would be “a serious mat- abridges speech the freedoms of requirements imposed by ter” if the previously, As we noted one of press.189 Commission would effect induce points emphasized by those the Court thereby licensee censor themselves scarcity frequen- was “the of broadcast making coverage their of controversial allocating cies, the Government’s role in However, “ineffective.” issues legitimate frequencies, those and the merely the Court deemed this to be govern- speculative possibility. claims of unable without those fact Court determined that if licensees gain mental access those assistance frequencies expression of their views suddenly prove timorous, should powerless Commission is to insist
.”190
impossible
provide
Proposal,
185. It would be
A Reevaluation
N.Y.
47
complete bibliography
(1972) ; Note,
law review ma
U.L.Rev.
We Pick
83
space
’Em,
terials
At
Watch ’Em:
Amend-
available here.
You
First
omitting
Viewers,
Rights
the risk of
43
far more than we
ment
Television
(1970) ; Note,
can include we call the
attention
826
Free
reader’s
S.Cal.L.Rev.
following: Symposium,
Speech
Media,
and the Mass
Va.L.Rev.
Media and
57
Society,
the First Amendment
in a Free
636
871-1099, particularly,
60 Geo.L.J.
1031-
386-401,
at
395 U.S.
89 S.Ct.
(1972) ;
Western,
A
Johnson &
Twen
the Court stated that “the
as a
their
.
.
Lion Era
whole retain
collective
The Post Red
.
C.
right
to have
function
the medium
passed
that has
time
the short
consistently
pur-
ends and
case,
has been
Lion
there
Red
since the
poses of
First Amendment.”196
growing
of cases decid-
number
an ever
say:
doctrine,
went
concerning the fairness
ed
broadcasting,
We
these cases
cussion of the fairness
ed
these
they must,
little
lengthy exposition
One
opinion
cases have
unnecessary.
already
shape of the
during
and the
which did
Red Lion and have added
relied
considered
here
For the
course of our
first
law.
doctrine.
provide instruc-
is unwarrant-
primarily, as
amendment.
most
many
Thus,
part
dis-
broadcaster
tional
others.
“.
radio
fellow citizens.
.
right
-X-
.
.
.
frequency
right
. The
to snuff
[*]
[A]
.
.
.
licensee has no constitu-
right
...
(cid:127)»
.
.
to the exclusion of his
out the free
.
.
.
[*]
does not embrace
free
.
monopolize a
-X-
speech
speech
[*]
of a
enlightenment
amend-
in the first
tional
*
-x-
*
*
*
*
scholarly
Judge Wright’s
ment area is
right of
.
.
It is the
the viewers
opinion
Move
in Business Executives’
right
listeners,
Judge
197
Peace
F. C. C.194
Vietnam
broadcasters,
paramount.”
393-394,
Id.,
at
192.
at
89 S.Ct.
395 U.S.
speech
of radio
free
means
1808.
326
§
47 U.S.C.
communication.”
(1964).
396,
Id.,
at
89
193.
395 U.S. at
S.Ct.
U.S.App.D.O.
Id.,
F.2d
at
450
146
1809.
renumbered).
(footnote
at 649
188-189,
Id.,
U.S.App.D.O. at
450
146
U.S.App.D.C.
196.
F.20
450
642
citing
649-650,
at
395 U.S.
(1971).
F.2d at
(footnote
renumber-
89 S.Ct.
See,
g.,
e.
v. Paramount
United States
ed).
Pictures,
Inc.,
131, 166,
U.S.
Id.,
U.S.App.D.O.
F.2d
at
tions not reflect does the same con Act] ‘security ap cern of certificate’ that VI. SANCTIONS pears in other laws.”212 Both Greater light violations of the extensive Boston- and Citizens Communications areas found the Commission make it clear that the Commission can personal doctrine, the attack the fairness provide act assurances better misrepresentation program rules, broadcasting by taking licenses from plans, refused to renew the Commission provide those who fail to for the Commission, Brandywine’s license. interest. finding its action would have while justified Commission need be con when based been *42 exercising fined areas, technique to opinion the to base its chose regulatory Brandywine’s total surveillance to assure a consideration of discharge imposed performance. licensees will duties them, perhaps grudgingly per in As the Commission stated haps required. to minimum the Harris,208 Letter to the Honorable Oren may public also seek in the interest to oper question of the licensee is whether certify as licensees those who would ating interest, estab the speak voice, out fresh renewal,209 lished for license is standard encourage naturally initiate, most At determined at the time renewal. expand diversity approach must time the Commission take the viewpoint.213 account, performance into licensee’s total Judge including recently adherence to fairness Leventhal enunciated prime course, reviewing the standard Of consider decisions doctrine. regulatory agencies ation come back the effective must these terms: ness of in his role as trustee the licensee recognized We tension between public. for the judicial restraint, doctrine Judge Wright points As out requires which of us considerable def- Communications F. C. Citizens Center v. decisions, agency erence to and the 210 C.: practical judicial review, necessities of policy require of the Act clear that which a minimum standard of person anything articulation, may
no
to have
so that
we
discern
right
path
property
nature of a
as a result
which
Commission took
granting
way
on the
of a license.
Licenses
its result. We acknowl-
U.S.App.D.C.
(1963).
383,
40
343
edged impossibility of emotional Freedom speech long universally de applicable “for is a truth formula that we have self-evident; ciding agency held to . . refuse to sit . we when tolerably by idly and watch truth snuffed out crossed the line from ” 214 by group overly-zealous intolerably men . mute. whose terse to the filling sole interest is the airwaves with opinion in The Commission’s their own views the exclusion of the type exemplifies the of find case views of all others. Mclntire and Dr. ings like see which this court would every his followers have to air complete, opinion is all its cases. views; their so do the balance thoughtful carefully thorough, based people. our two-hundred-and-ten-million imposed sanction on the law. The given Brandywine every opportu- was fully supported nity to succeed in broadcast endeav- justification can find no record. We onor out. set The Commission upsetting so well a sanction substan duty granting fulfilled its the initial findings record and the tiated although proven license have the Commission. popular expedient more bow course, previous as Of protestations Brandywine’s de- ly out, pointed these sanctions did not tractors. The Commission forewarned Brandywine surprise. befall Brandywine about its fairness doctrine warning to Borst Decision contained a personal and its every attack rules and made designed licensee alert him explain Despite effort them. expectations; Commission’s this warn sanguine the Commission’s outlook it ing acknowledged by the was licensee. Brandywine soon evident can inform The Commission comply require- refused to ments, with those law; it cannot coerce advise designed to which are serve the comply. licensee interest and audi- good inter- ence. Commission faith was VII. CONCLUSION preted act as an of weakness. Finally, the end of our we come to The first amendment was never *43 long journey. Yet, a we take mo- brief protect provid- tended to the while few path on have ment to we comment ing them with sacrosanct sword and a Appellants requested at oral travelled. injure could shield with which many. Censorship argument rely that the court alone press inhibition and pleadings, on the cold in the submissions this when en- do not well court sit with carefully but entire that we review the by gaged Commission or either the done so record this case. We have most serious a defiant licensee. fastidiously no corner un- have left —we wrong denial of an was in this case turned; gone no unconsidered. fact people of open free airwave to the and many lessons. What found teaches Philadelphia and its environs. Appellants a trail marked have blazed opinion Consequently, of the Fed- by empty promises ver- valueless Commission is Communications eral They prevail biage. attempted to Affirmed. by wearing down both Commission charged However, with those court. Judge, WRIGHT, Circuit SKELLY J. rights precious protecting concurring: cannot, public not, be exhausted will Judge opinion contains attempt Tamm’s group who of recalcitrants this facts of of the articulation speech careful bully. cajole Freedom exposition of the cry and an excellent slogan rallying case empty or a is not an not neces- I am applicable While law. hands it —nor can be snatched apprais- his sarily agreement all with outpour- people by an American 1203, (1972). 179, 148, F.C.C., U.S.App.D.C. at 1204 459 F.2d 148 v. Radio 214. WAIT
63
people con- of
In
of the
these circumstances
actions
discretion.
of the
als
including
litigation,
make its own
the court
itself should
cerned with
examiner,
hearing
con-
that
I
evaluation of
evidence
insure
and the
counsel
affirming the Com- First Amendment freedoms of
licen
in his decision
cur
fully
fairly
ground
public
substantial
and the
see
on the
mission
supports
into
decision
Commission’s taken
account in the
mak
evidence
ing
Ohio,
misrepresented
process.
finding
appellant
its
v.
See Jacobellis
consciously
184, 187-190,
1676,
plans
de-
program
and thus
U.S.
84 S.Ct.
L.
finding
(1964);
Ed.2d
York
New
Times Co.
ceived the Commission.
Sullivan,
ground
254, 285,
separate
denial of re-
v.
U.S.
S.Ct.
was
710,
(1964);
11 L.Ed.2d
the Commission.
Niemotko
newal
271,
Maryland,
268,
v.
U.S.
S.Ct.
unpopu-
an
case did not involve
If this
328,
267,
(1951);
325,
95 L.Ed.
preacher, for me it
lar fundamentalist
Bridges
California,
314 U.S.
easy
appli-
one
indeed.
62 S.Ct.
lencing WXUR, has uncertain bal- the Commission of- ance freedoms free- First Amendment to the licensee’s dealt a death blow guidelines fers in this press. so definite speech Further- few doms of easy area, listening there no answer to is more, denied the it has My question. has expression many this Brother Tamm contro- access to’ opinion lengthy, written detailed Yet, Commission versial views. reg- carefully applies approve action in the this would have us case; ulations to the facts there doctrine, con- name of the fairness perhaps premised validity a time when I could concur stitutional which is fully argument But I fear with his conclusions. on the its enforcement crystal- assumptions that ancient market- will place enhance access infringe- lized rules all of us to the have blinded ideas without serious depth rights of the First Amendment issues ment of the First Amendment affirming volved here. the Commis- individual broadcasters. sion, Judge applica- Tamm relied paradoxical sustained result is tion of the doctrine and the fairness Su- only by argument that, de- a faith preme Court’s decision WOKO. along spite casualties some short-term Judge Wright, hand, on the other relied long-term way, enforcement of the only on I WOKO. But must dissent obligations fairness doctrine’s only is the My writing purpose both counts. marketplace means to achieve separate try opinion come go gnats ideal. But if we after are to grips conceptual underpinnings with the sledgehammer with a like the fairness which have led the such Commission to ought doctrine, we at least look at consequences ironic before case me. what else our is smashed beneath blow. perception of need for Our broad- I. Judge casting regulation not, begin I with a discussion the stand- words, “seriously ques- Tamm’s been according regulation ards to which fifty years.” tioned in over A re-exami- government broadcasting by the federal value, purposes nation of the and effects judged. “judged”, say And I must be me raises for fairness doctrine particular duty because such doubts about constitu- serious test all federal function of court to application tionality here I of its regulation against speech press compelled my am to withhold affirm- mandates of our Constitution. ance. “public interest”, standard under Instead, I would remand to FCC operates, which the FCC di- cannot be searching inquiry for a into the fac- contemporary vorced our under- policies1 tual issues and alternative standing interpretation of First raised within constitutional frame- Amendment. below, work can outlined even before purpose of the First Amendment begin question: does si- answer the preserve is to an “uninhibited market- lencing name of the fair- WXUR the language place presup- ideas.”2 Its ness doctrine the First Amend- violate poses general concept that the mar- ment? ketplace preserved by protecting best speak regu- governmental of each individual The entire field of *45 freely; fitting remedy “the for evil is lation broadcast communication so good ones”,3 fraught competing is rather than counsels interests and with System Expression policies, of Freedom of see The 1. For a discussion of (1970) 46, as 51, Emerson]. cited [hereinafter *46 (Frank- 448, 458, only L.Ed. 513 93 a S.Ct. mean that there would be condition- (1949). concurring) any furter, right, complete right, al 66 designed by Regulations licenses.13 the 1920s the number But which effectively system increased dramat- function broadcasters had so make the partic- ically every impact may on a was occu- “channel” have an adverse abridge- pied by by rights. station, some sev- at least one But ular individual’s resulting rights may eral. be toler- The chaos “shook the ment of individual long broadcasting en- in the run it and left an indelible
ated
when
world
dangers
impression
right
public
non-
to receive
hances the
regulation.”14
marketplace
of diverse
access
Obviously
requires
deli-
views.
this
By
pri-
1927 it had become clear
balancing:
private
cate
harm to
vate
threatened
over-use of the airwaves
rights
by
outweighed
must
benefit
be
right
public’s
to listen to what was
public.10
being
air,
everybody
said.
“With
balancing
ap
process
has been
nobody could
heard.”15
condi-
Some
plied
regulation
the broadcast
Congress
tions had to
to re-
be set
industry,11 although
infancy
radio
strict use
medium—
enjoyed
printed
freedom
the same
as
scarcity
created
conditions
press:
“anyone
is,
will
who
come to be the
resource which has
gave
transmit.”12
Radio Act
1912
outstanding
of the indus-
characteristic
Secretary
no discretion to the
of Com
try.16
granting
merce
of broadcast
enlightenment
Supreme
and en-
in Red Lion
dium for
Court
stated
that while neither interest cancelled out
tertainment.
public’s
other,
para-
must be
during
Congressman
12. Remarks of
White
389-390,
mount.
11. Red
Co.
United
Lion
Co. v.
National
States,
210-213,
375,
190,
386-390,
63 S.Ct.
at
395 U.S.
319 U.S.
89 S.Ct.
(1943).
Congress
provided
997,
specifically
L.Ed. 1344
§
not “interfere with
FCC could
38;
supra
Socolow,
at
note 12
13. See
right
speech by
of free
means of radio
supra
seq.
Warner,
12,
et
note
at 757
communication.”
Policy
Broadcasting,
Kalven,
&
Public
Censorship.
§ 326.
Amendment,
Law
The First
10 Journal
Nothing
chapter
in this
shall be under-
15,
(1967).
Economics
&
give
stood or construed to
the Com-
power
censorship
mission the
over
F.C.C.,
Broadcasting
15. National
Co.
signals
the radio
communications
1008,
997,
U.S.
63 S.Ct.
by any
station,
transmitted
radio
L.Ed. 1344
regulation
no
promulgated
or condition
shall
Accord,
Broadcasting
Lion
Co. v.
Red
or fixed
the Commis-
F.C.C.,
395 U.S.
S.Ct.
sion which shall
interfere with the
1805:
speech by
of free
radio
means of
from
communication.
the chaos which ensued
any frequency
recognized
anyone
permitting
bal-
to use
wished,
ancing
power
Report
level he
its 1949
on Editorial-
at whatever
necessary
izing
Licensees,
the enact-
.
. made
Broadcast
13 F.C.C.
.
Act
1927 and the
of the Radio
1257:
ment
Any regulation
radio, especially
Act of
Communications
system
length
licensees,
has noted at
before.
limited
a real
Court
reality
abridgement
which at
It
sense an
of the inherent
.
.
persons
very
express
the di-
necessitated first
freedom of
them-
least
por-
spectrum
into
radio
selves
means of radio communica-
vision of the
respectively
is, however,
necessary
tion.
tions reserved
broadcasting
important
abridgement
for other
constitutional
order
operation,
prevent
as amateur
chaotic interference
de-
uses such
radio
naviga-
potential
defense,
stroying
great
police,
aircraft,
me-
of this
*47
expression,
policy ordered
of
strict “hands-off”
Unlike other modes
required
inherently
bal-
to all.
First Amendment
a careful
is not available
radio
rights
characteristic,
ancing
private
public
of
unique
vs.
That
is its
light
goal
paramount
ex-
why,
of
of the
of a market-
other modes
is
unlike
place
governmental
pression,
subject
of ideas.
it is
regulation.
used
be
Because it cannot
Many
given
reasons
have been
by all,
must
use it
some who wish
regulation
of
But be-
broadcasting.20
be denied.17
simple
all
hind
formulations
lies the
fact
that a
re-
broadcast
license
a scarce
is
rights
Only
private
access
because
Regulation by government
source.
can-
limited,
it
to be
air had
not,
Amendment,
under the
di-
First
public’s
access
feared
vorced from the
market-
threat
marketplace
of ideas
a robust
place
unique
posed
characteristic
Congress
authorized
endangered.18
however,
scarcity.
temptation is,
newly-created
to insure
Commission
rely
justify'
on familiar
formulas
public
operate “in the
that broadcasters
regulations,
may
they
new
even where
duty
been
had never
interest” —a
which
justified by
not be
Amendment
First
imposed
printed
But Con-
on the
media.
test.
gress
did “not license
instance,
For
often
stated as
offensive material
scan the airwaves for
foregone
discriminating
li-
conclusion that a
a lens than
“broadcast
no more
subject
cense is
'public
form
trust
to termi-
Each new
interest’.”19
duty”,
regulation
nation
departed
for breach
and thus
from the
tion;
justifi-
20. For a critical discussion of the
of each
and then the subdivision
regulation
assignment
specific
portion,
fre-
cations for
the broadcast
industry
Robinson,
groups
quencies
see
Observations on
users or
to .individual
years
Regula-
however,
Beyond this,
be-
40
tion,
of Radio and Television
of users.
(1967) Note,
pub-
;
frequencies
52 Minn.L.Rev. 67
reserved for
cause the
Concepts
broadcasting
Under
of the Broadcast Media
were limited
num-
lic
ber,
Amendment: A
the First
Reevaluation
for the Govern-
was essential
Proposal,
applicants
N.Y.U.L.Rev.
tell
ment to
some
(1972) ;
contrasting
for a
view see Bar-
all
there
because
could not broadcast
Equal
row,
Opportunities
and Fair-
a few.
was room
ness Doctrines: Pillars in the Forum of
F.C.C.,
Broadcasting
v.
National
Co.
Democracy,
(1968).
37 Cin.L.Rev. 447
190, 226,
997, 1014
63 S.Ct.
319 U.S.
(1943).
21. Office of
Communication
United
F.C.C.,
Church
Christ v.
123 U.S.
F.C.C.,
Broadcasting
v.
National
Co.
App.D.C. 328, 337,
994,
359 F.2d
at 1008:
that the attach whatever trustee. But the of the trust protect beyond necessary ties cannot extended what ditions to be it believes government marketplace Certainly required preserve of to the interest. airwaves, might dangers scarcity ownership claim of the ideas may the which just ownership “public claimed Thus the term as it has threaten. parks facilities, compli- postal expresses trust” the and streets and result a reasoning good. public cannot, process for the But un- cated of constitutional by owner, simple private place deceptively like upon a is a a restraints rights formula. It conclusory applied dangerously
the First Amendment label history property simply those who or deri- use this without reference to its declaring vation, very weight “I own it.” The and has no constitutional fact of public ownership brings into of its or control own. play Amendment, the First re- As we have stated before: quires governmental authority may that against complaints First Amendment justify not be used in and of itself to regulation FCC of content are not ad- deprivation speech freedoms of equately answered mere recitation press.22 otherwise, Were it consti- technically imposed necessity of the protections tutional price would fall the ca- broadcasting regulation for some governments. conclusory propositions and the that “pub-
There
“the
is some
owns
airwaves”
usefulness
terminology only
lic trust”
the
privilege”.
if
broadcast license is a “revocable
it is un-
derstood to be
It
well be
some
derived from
that
technical
scarcity
industry.
policies
venerable
To
FCC
cannot with-
government
scrutiny
stand
constitutional
that
extent
can
light
impose
contemporary understanding
must
upon
restrictions
licensees
problems posed
order to deal
First
Amendment and the modern
proliferation
broadcasting
scarcity, a broadcast
outlets.23
licensee is a
indulge
fantasy.
Surely
parks,
consequently
no one
and that
individu-
seriously supposes
airways
pur-
that
als
no
to use them for
thing
poses
pos-
expression except
gov-
of nature which can
on the
sessed, occupied,
any
Moreover,
or used in
ernment’s own terms.
nor-
problem
simply
bring-
actuality,
mal sense of the word.
is not solved
“airways”
merely
ing
picture
into the
the doctrine of un-
convenient
short-
hand,
phenomenon
an
if
abstraction for a
constitutional
conditions —that
government
privilege
pri-
created as a
result of the
extends
of us-
use of
vately
airways
private
ing
owned
transmission
individuals
facilities.
artificial,
“spectrum”
purely
groups
is a
or
it cannot attach conditions
construct of the
violate
the First Amendment.
itself. To
give
Surely
power
independent
this construct
na-
affirmative
of the First
attempt
justify
govern-
ture
then
Amendment
demands
regulation
general use,
itself
ment make available
those
is en-
terms
tirely
saying
right,
sig-
circular.
is like
constitutional
the most
system
frequencies
the Commission
nificant medium in
owns the
our whole
expression.
power
regulate
gov-
because
has the
freedom of
it.
use,
power
monopoly
their
and that
it has
ernment
cannot maintain
regulate
airways
their
use because it owns
more than it can
monopoly
streets,
them.
maintain a
presses.
printing
Starting
from this
F.C.C.,
supra
22. Banzhaf v.
note
point,
then,
the First Amendment
is-
U.S.App.D.C.
commercial
is
This is
that
not
7,458.
1972,
September,
Lion,
past.
air as of
problem
In Red
daily newspapers
1971,
1,
analysis
January
Supreme
premised
As
Court
every
Nearly
1,749.48
only
existing
totaled
reality
limitations
variety
of dif-
city
a number
receives
American
also
There are
the resource.50
signals. Ra-
being
radio
arguments
ferent
television
about
raised
of new
represent
owner-
minority groups
diverse
dio licensees
lack of
for
access
public
ship;
broadcast-
UHF,
local and
yet
with
dealt
not
been
which have
compet-
ing
to the three
offer contrast
Lion cannot be
Red
the Court.51 But
broadcasting
ing
networks;
neither
scarcity:
read as the final word
spectrum
completely
But out
filled.
technology
is
future was
of the
cable
only
cities,
1,400 newspaper
there are
decision.
even mentioned in the Court’s
Vietnam,
any matter,
is
Peace,
the foundation
Uves’ Move For
system broad-
Judge Wright’s
the American
stone of
statement
be well
note
casting.
for
court:
particularly important
Information,
Federal Com-
Office
only
public’s
First
cases deal
with
Commission,
Release,
News
munications
in broadcasters’
Amendment
interests
1972;
10,
Editor
and Publisher
Oct.
They
advertising time.
allocation of
Year Book-1972.
relinquished by
deal
time
with
Bagdikian,
Conspiracy
49. B.
The Effete
others;
petitioners ar-
broadcasters to
(1972).
of the Press 11
Other Crimes
gue
relinquishing
only that,
time,
discrimi-
must not
broadcasters
Broadcasting
F.C.C.,
50. Red
Co.
Lion
v.
expression.
against protected
In
nate
396-401,
1794,
89 S.Ct.
U.S.
closely
time,
programming
con-
normal
L.Ed.2d 371
by broadcasters,
trolled and edited
minority groups
51. Access of
micro-
inter-
of constitutional
constellation
phone
mass
communication is indeed
substantially
different.
presenta-
ests
would
problem;
it is one
serious
which exists
documentary
In news and
tions,
respect
newspapers
as well as
example,
the broadcasters’
right
the broadcast media. But
speech
very,
own
in free
interests
countering
hear a
view does not solve
very strong.
The Commis-
.
.
problem
of control of stations or news-
properly
sion’s
leaves
fairness doctrine
papers.
upholding
promulgation
leeway
professional
licensees broad
Lien,
in Red
fairness rules
White
“Justice
judgment
But
al-
in that area.
found the force of the First Amendment
advertising time,
location
the broad-
right
hear,
to lie in the
strong
casters
First
have no such
ignored
ordinary
and he
speech
Amendment
Their
interests.
broadcasting
citizen to use
facilities to
issue;
rather,
all
is at issue
speak.” Emerson at 664. The fairness
par-
is their
which other
decision as to
necessarily speak
doctrine does not
given
opportunity
ties
will be
minority rights of access.
speak.
Recently,
Supra,
U.S.App.D.C.
this court determined that
F.
may not,
general
broadcast
policy,
licensees
as a
2d at 654.
might
argued
refuse to sell
of its advertis
It also
well
ing
groups
time to
or individuals wish
economic status
the owners of
broad-
ing
speak
stations,
out on controversial
cast
tisers,
the influence
adver-
issues.
unlikely
Business Executives’
opin-
Move For
certain
make
F.C.O.,
U.S.App.
Vietnam Peace v.
ions will
ever be aired.
fairness
(1971),
D.C.
boggling.54
(1972).
Smith,
facsimile over a television microwave
Nation
The Wired
slightly
circuit
over
minutes.
two
Id.
wanted,
55. “If more channels are
sec
a
Elec-
also
Id.
5. See
Industrial
laid,
third,
.
ond cable can
a
In-
the Electronics
tronics Division of
” Smith,
a fourth
.
.
.
The Wired
Association, The
Future
dustries
(1972).
Botein,
Nation 7
See also
Access
28,
Communications, Oct.
Broadband
Television,
419,
to Cable
57 Corn.L.Rev.
services—be-
1969. Some of
(1972)
Reg.2d
;
22 P. & F. Radio
pre-
yond
are
traditional
television—which
(Letter
1759,
(1971),
Dean
1761-65
from
delivery,
services,
dicted include data
mail
Burch, Chairman, F.C.C.,
to Subcomm.
two-way
communication, and a
television
on
Comm.
Communication
Senate
library service:
home
Commerce,
August 5, 1971).
p. 1771,
home
the electronic
This
library
be called
BCNL).
(designated
service
today
economic,
appears
56. It
reader
available a
technical,
reality
such a service
With
restrict
limitations
request
jjeriodical from
entry
can
a book
And
into
broadcast market.
library, using
large
a narrow-
these,
a
central
barriers to en-
as to
try
“the economic
library (a phone
broadcasting
band channel
into
are
radio
itself.)
BCN
circuit or
network
than in
far
less restrictive
the case
then
Robinson,
book is
“transmitted”
newspapers.”
The desired
media such as
microfiche, microfilm,
video
supra
course,
note
But of
at 88.
page
tape,
by page,
yet
via the
scarcity
received
economic
does
basis
regulation
justify
printed
dedicated wide-band
BCN network on a
the content of
regulation
press although
channel.
ac-
anti-trust
possible.
operation
States,
cepted,
are
Several modes of
Press v.
Associated
United
one,
arti-
entire book or
selected
tion. separate opinion, I my
As shown my concurrence the court’s rested ground. deception solely
judgment on the Judge affirm Tamm would Since ground also, on that UNITED STATES of America ground alone, ground, forms and that judgment. do of our I basis ledge.” agree McCLURE, it is too “narrow a Appellant. Thomas E. Elementary principles teach contract No. 71-1048. his license that when licensee obtains Appeals, United States Court of may deception, that license fraud District of Columbia Circuit. grantor like other be voided Argued Sept. naught be set at contract *60 Decided Nov. I do not believe that same reason. deception in less contract is voidable inception simply because Govern- Indeed, party
ment deceived. public is the loser
since the when deceived, courts
Government is should pri-
more, enforcing less, not alert contracting
mary concepts, particularly simple honesty.
those based
By resting judgment the court’s ground, case narrow contract plunging
we avoid into constitutional - “thicket” is the fairness doctrine. con- fairness doctrine is a tortured that,
stitutional area the law
Judge recognizes, Bazelon is under com-
prehensive study rule-making pro-
ceedings being now conducted pendency
Commission. Because study
of this and because should courts out to reach decide difficult consti- issues when a
tutional narrow nonconsti- ground decision,
tutional is available for
I voted to affirm the ac- Commission’s reaching
tion in this case without ap-
constitutional issues involved
plication of the fairness doctrine. do I obtaining deception think
Government license is too narrow
ledge voiding that license. The Su- notes Brandywine for a ter the Commission provided a license charges op- August 1966, applicant 1, three-year period that the has from the through 31, July Bran- erated stations WXUR and Based on WXUR- FM, commu- dywine’s March force in the operating record from divisive nity by religious through May disparaging the racial and castigating vilifying filing parties opposed groups date, nineteen and and urged persons espousing groups the on application views the renewal ap- deny Brandywine’s controversial different issues Commission to applicant.35 opposition from plication.34 those of the joint pleading form filed with the of a adopted of Commission a number July 19, the Commission hearing issues of which four remain considering of pertinent proceedings: the After submissions to these parties found the Commission the (cid:127) applicant To the determine whether questions did exist as substantial the failed to inform fully program plans in con- of its applicant met the whether has application for ac- nection its with forth conditions set in the Commis- quisition control of of Stations sion’s . . [Transfer . Order] WXUR-FM; WXUR and during period its license (cid:127) applicant To August 1, whether determine April 1965 to complied Doc- the Fairness 1966; with applicant . . . whether the trine Act and Section 315 of the fully candidly the Com- advised opportunity affording a reasonable program plans mission in con- of its conflicting the discussion application nection with its [transfer] public importance views on issues ; applicant’s efforts during period; license its comply Fair- with Commission’s (cid:127) Doctrine, including personal during ness li- To whether determine principle; attack period applicant cense has com- applicant whether the fa- plied personal prin- has used with the attack cilities sec- ciple of its stations to serve Doctrine of the Fairness prin- political tapes, furnishing copies pertinent tarian and of its views cipals per- their and to raise funds for continuities summaries support spe- groups attacked, than to the com- rather serve sons or II, League 33. J.A. Vol. 207-33. for Peace AVomen’s International Freedom, the American Com- Jewish challengers 34. Tlie the AFL-CIO Huston, mittee, and the Rev. Donald G. Pennsylvania, Baptist the American Presbyterian Pastor, Church First Evangelism, Convention Division of Lower Marion. Valley Delaware American Council organ persons addition, various Congress, Jewish the Anti-Defamation izations, Philadelphia via., the Greater League B’rith, of B’nai Board So- American Branch Civil Liberties Ministry Synod cial Lutheran Representatives Union, House Pennsylvania, Sholom, Eastern B’rith Assembly Pennsylvania, the General Council, Community Catholic Relations of Delaware Coun Unitarian Church Fellowship Herald, the Catholic Star ty, Pennsylvania Council of Churches Commission, Philadelphia the Greater Borough Council, and the wrote Media Churches, Council of the Jewish Commun- “requesting investiga the Commission ity Relations Council of Greater Phil- of, hearing Brandywine’s pro tion adelphia, Committee, the Jewish Labor July supra, gramming.” Decision, Fellowship House, the Media the Media 1, fn. ¶ Chapter NAACP, Jersey the New Churches, Designation supra, Philadelphia Order, Council of If League, Urban the U.S. Section
Notes
notes
57 infra.
357,
Whitney
California,
F.C.C.,
Broadcasting
3.
v.
274 U.S.
2.
v.
Red
Co.
Lion
648,
375-376,
641,
390,
1794,
367,
71 L.Ed.
23
47 S.Ct.
395
S.Ct.
U.S.
89
Judge
(1927).
Emerson,
(1969).
the words
1095
L.Ed.2d
also
371
See
65
course,
governmentally
exceptions
silence,
di-
Of
there have been
or
coerced
general proposition.
Thus,
is a
First
to this
There
“the
rected
discussion.
speak equivocally.
to accommodate other societal inter-
does not
need
Amendment
‘abridging
any
free-
Holmes
said
prohibits
as Mr. Justice
ests:
law
” 4
States,
press.’
speech,
v.
most
Schenck
United
“[t]he
dom
or
stringent
protection
speech
free
logic
always
behind
Such has
been
falsely
protect
a
would
man
protection
our
of the freedom
strict
shouting
causing
fire in
a
a theatre
views
press
news
disseminate
panic.”7
government may
The
act
also
imposition of
from the
issues
affirmatively
regulate
which
behavior
regulations.5
governmental
burdens
directly
speech of
the free
threatens
mandate
The First Amendment's
regulation
types
others.8 New
which
individual
is the
freedom
promote
effective communication
marketplace
ideal
means
achieve
required:
various forms of modern
“the
public “[t]o
American
of an informed
so-called
is-
‘mass communications’
raise
be,
always
many
is,
implied
will
mean-
...
sues that were not
ing
known
Franklin
upon
of communication
our
folly;
we have staked
6
and Jefferson
Madison.”9
all.”
express
American to
his
to his
Hand,
views
First Amendment
Learned
neighbors
neighbors
right
his
hear
“presupposes
are
conclusions
—or
Konigsberg
likely
v.
those views.”
Bar
gathered
mul-
State
out of
to be
more
California,
36,
any
68,
through
of
997,
tongues,
366
81
U.S.
S.Ct.
than
titude
1016,
(1961).