Yale Broadcasting Company v. Federal Communications Commission and United States of America, 478 F.2d 594

Yale Broadcasting Company v. Federal Communications Commission and United States of America

478 F.2d 594

D.C. Cir.

1973

Check Treatment

*1 States, trial in the United the Tax Court inquiry have recessed for

would least proceed whether case

stipulations, affidavits, deposition.18 Under the have taken of this view we only

case, this court has before it not

appeal from the Tax Court’s order 31, 1971, appeal

March but also an 17, February default 1970. light appellant’s timely appeal 24, 1970, judgment

March vacate the February 17, The default

judgment was entered on the basis of misleading

record that was to the trial judge non-filing —because by appellant letter sent to the Court Tax 1969, 4, on November and the selective '

presentation IRS counsel—and its

maintenance is not in the interest of

justice, see 28 U.S.C. 2106. §

Reversed and remanded for further

proceedings.19

So ordered.

YALE BROADCASTING COM- al., Petitioner, PANY et

FEDERAL COM- COMMUNICATIONS MISSION and United States of Amer- ica, Respondents.

No. 71-1780.

United Appeals, States Court District of Columbia Circuit.

Argued Oct.

Decided Jan. 24, 1970, 30, TCRP, provides letter See Rule which motion Appearance, vacate. Trial Since our view it is also Submission Without provides Stipula- properly appeal, Rule taken as a notice of tions. February default vacated, give must be we need not further 19. The November 1970 and March subsequent consideration to the orders of Tax orders Court were entered on assumption March Tax Court. *2 Judge:

WILKEY, Circuit controversy The source of this by the Federal Communi- Notice issued “drug regarding cations allegedly played some oriented” music sub- This Notice and a radio stations.1 Order, purposes of sequent the stated of a to remind broadcasters which were pre-existing duty, required licensees knowledge of their content the programming this and on the basis desirability knowledge the evaluate drug broadcasting dealing music licensee, Appellant, use. a radio station argues first the and the Or- Notice infringe- der are unconstitutional right Amendment ment of First appel- alternative, speech. In the free they impose du- lant contends that therefore, must, ties on licensees and subject rulemaking procedures. be the argued Finally the statements’ vague requirements impermissibly are discre- and that has abused its FCC clarify position. refusing tion in Finding arguments none valid, licensee we affirm action the FCC. the First Substance and Second Washington, Westen, Notices Tracy D.

Mr. A. C., Smith, Eric H. with whom Mr. early In late 1960’s and 1970’s brief, C., Washington, on the for D. was began receiving complaints petitioners. alleged public regarding “drug ori- Marino, Joseph A. Associate Gen. Mr. songs played by ented” radio certain Counsel, C., F. C. with whom Messers. response broadcasters. to these com- Pettit, Counsel, John R. Michael W. Gen. plaints Notice, the Commission issued a Senkowski, Counsel, C., How- F. C. purpose stated of which Justice, Dept, Shapiro, Atty., ard E. mind brief, respondents. were on the Mr. To broadcast interest.2 Counsel, Conlin, John H. Associate Gen. obligation fulfill this licensees told filed, F. C. at the time record was C. must make “reasonable ef- appearance respon- also entered an forts” to determine before broadcast dent, F. C. C. meaning containing drug ori- music lyrics. specified DANAHER, ented The Notice Before Circuit Senior knowledge possession Judge, WILKEY, ROBINSON management Judges. level Circuit executive actually major Order, The sole There Federal 31 F.C.C.2d 377 two purpose of item mentioned second in Communications Commission actions modify clarify the Public above was to dispute. volved is a first Notice. Notice, Public F.C.C.2d 409 Opinion Notice, second is Memorandum 28 F.C.C.2d 409 Public regarding definitive statement” station, then make sion’s who must playing ex-' regarding music broadcaster the wisdom responsibility.^.To drugs are inconsistent containing or the tent the two references Notice, confused, be- drug as we treat culture. intends, su- lieve the Commission initial led substantial perseded the Order. Reference industry confusion within requirements those *3 Commission’s is to among public. cen- and Confusion by established the Order. meaning phrases tered around the “knowing lyr- such ics,” the content of the definitive, Once Order is taken as broadcast,” and “ascertain before fairly simple it becomes to understand “reasonable efforts.” what the of its The FCC asks licensees. ambiguities, clarify In order to these drug recognizes gravity Order of the issued a second Memorandum problem society. abuse in our From modifying clarifying cer- and Order basis, proceeds this the Order to remind parts original 4The tain Notice.3 they may broadcasters that not remain (1) the thrust of this Order was that problem indifferent to this severe prohibiting was not the (2) impact drug must consider ori- “drug playing records, oriented” may ented music the audience.5 against reprisals no sta- would be taken The Commission then “drug music, makes common played tions that oriented” sense observation that in order to make necessary but still for sta- was this considered a broadcaster tion to “know” the content of records broadcasting.6 must “know” what it is played “judgment” regard- and make a ing playing records. the wisdom great lengths' The Commission went saying by to illustrate what it meant Interpretation II. Or- Definitive that a broadcaster must “know” what der being emphasizes broadcast. Order argu- Many fears and requiring that it is not the unreasonable apparent ments stem from the inconsist- and that the “not Commission was call- ing encies between the investigation Notice and the subse- for an extensive quent clear, however, quite Order. It is each. . record”7 that dealt with that the Order drugs. “constitutes the Commis- It also made clear that there Opinion Order, 3. Memorandum question should not be indifferent being F.C.C.2d 377 whether his facilities are used to promote illegal drugs.” use of harmful Order, In its Memorandum and the FCC IUd. noted that its initial had been Notice widely misconstrued. The Commission 6. “The Commission did make clear in the then said: broadcaster could jeopardize failing [I]t follows where notice is so his license to exer- erroneously depicted, appro- we should cise license in this area. priately Except by political call attention to the error. We as to broadcasts can- didates, responsible do so this Memorandum and Order. the licensee is for the fully While it adheres to the above material over his facilities. policy noted established of licensee re- The thrust of the Notice is sponsibility, opinion simply concept treats of licensee re- greater sponsibility question matter detail and this con- extends to the of rec- may promote stitutes glorify definitive ords which or respect. illegal statement drugs. in this use of The licensee should F.C.C.2d being know whether his facilities are used present again again a record which “Clearly, in a time when there is an urges youth take heroin or cocaine— epidemic illegal drug use —when wonderful, joyous experience.” it is a young being thousands lives Id. at 379. destroyed by drugs heroin, use of like (“speed”), methedrin cocaine —the licensee Id. at 380. requisite pre- knowl- caster could obtain general requirement no was obliga- edge. fulfill A licensee could records.8 screen through (1) pre-screeing ob- The Commission employee, (2) sponsible monitor- station asking to deci- viously not being ing they were selections while ambigui- every every syllable, pher settle played, considering respond- objection every satisfy ty, conceivable complaints made members airing composition. A broad- prior public.10 clear that Order made reasona- can what he must know caster sugges- procedures light bly expected know be regarded tions, and were not to as ei- be being broadcast. of the music nature requirements exclu- ther absolute or the simple example, quite for a may, fulfilling pub- sive means a station’s instru- that an determine broadcaster obligation.11 lic interest piece little relevance mental extremely Conversely, drugs. understanding Having made clear our thought, *4 if done, what difficult determine what the Commission has attempting popular lyrics any, arguments up appellant’s some take seri- now only convey. case, can either what atim. reasonably is demanded be understood Burden on III. An Unconstitutional the broadcaster. Speech Freedom of assuage attempts Despite all argument Appellant’s first is fears, the Commission broadcasters’ imposes an that the Commission’s action misunder- an can be that Order alized on unconstitutional burden a broadcast stood, least misunderstood —at it will be speech. any er’s freedom of This contention ex- licensees. To remove some primarily Supreme rests on Court’s misunderstanding, the Commis- for cuse opinion California,12 in examples Smith specified a of how broad- sion “Again, may proceed below, it be desirable to made the Commission 8. As noted by analogy. compliance Licensees instruct their em- other to methods of reference presenting taped ployees pre-screening that before in the Memorandum than containing questionable language subsequent material Order the In a and Order. (i. nature), e., any explicitly an indecent or obscene in- disclaimed Commission brought requiring pre-screening: the matter should be the atten- tention responsible management out, appropriate point tion of a official. think it We Further, however, petitioners’ repeated . . while material that refer- presented part pre-screening requirement in a be once series a ence to approved, interpreta- has been screened and which each record is an erroneous presentation picked up, April 16, is then either order. tion of our by complaint personnel, Opinion Order, and a or station Memorandum judgment presenta- made as to further 386 n. 1 F.C.C.2d here, jockeys tion. also disc could So question case, supra, recognized instructed where there is a ADL “We promotes illegal imposition any a record as to whether undue verifica drug responsible usage, management process significantly inhibit tion ‘could presentation official should be notified so he can exer- of controversial issue the programming’ judgment. may (6 p. 386) ; cise his It be that a rec- F.C.C.2d respect Keogh, Washington ord which an issue raises Post v. U.S. cf. once, played per- is App.D.C. 32, but then the station That 365 F.2d 965 posi- Therefore, equally sonnel who have heard it will be in a is is so here. bring required simply good to the attention of the reasonable appropriate management problem. official for his wóuld faith attention We judgment.” aspect Ibid. in the conclude this as we did prior Notice. 9, supra. many areas, Thus, 11. See note here as so question responsible, good faith public 12. 361 80 S.Ct. 4 L.Ed.2d trustee whom U.S. action frequency No has been licensed. more, certainly is called for.” but no less F.C.C.2d goal pos- as- halted. Here the is to was convicted of nation which a bookseller sessing adequate selling literature. obscene sure the broadcaster knowledge. Knowledge Supreme required in or- the convic- Court reversed legiti- Although had a der that the broadcaster can make tion. State seeking pro- purpose to ban the dis- of its mate about the wisdom materials, gramming. dispute beyond it could tribution obscene goal by accomplish placing requires stations procedural public In or- the bookseller the burden in the interest. examining every in his store. To for a to determine book der broadcaster acting criminally in the inter- a bookseller liable whether it is make necessarily knowledge est, programming the books sold would of its own all required. “tend to he sells issued restrict the books inspected; the in- those he has and thus the Commission has reminded metaphysi- dustry imposed will of this fundamental State have a restriction upon constitutionally order to make distribution of cal observation—in judgment protected program- the value of well as obscene literature about ”13 knowledge ming one must have of that programming.

Appellant compares its own situation to that of argues the bookseller Smith say the licensee must We imposes that the Order uncon- broadcasting; knowledge it is of what stitutional burden on a broadcaster’s understanding precise speech. freedom of The two situations required the licensee is *5 easily distinguishable. are licensee No radio which is reasonable. obviously, Most a radio station can penal- any possibility of faces realistic a only period broadcast a finite ty misinterpreting lyrics it has twenty-four day; any each one hours permitted If chosen or to be broadcast. may a time bookstore contain thousands lyrics obscure, completely are of hours’ worth of readable material. put in on that it is station is notice Even the Commission had ordered broadcasting would material which fact encourage drug pre-screen that stations all materials lyrics are If the abuse. broadcast, the burden would not near- be meaningless, incoherent, con- the same ly great imposed so burden on argument of the clusion follows. The is, bookseller in As it Smith. broadcast- pre-screen licensee, many appellant that so required are not ers even to really ambiguous, lyrics are obscure and twenty-four their maximum of hours de- to some is a circumstance available daily programming. Broadcasters have gree permitting their defense for in his specifically gain they may been told that meaning broadcast, until their at least “knowledge” they of what broadcast lyrics or sounds are vir- clarified. Some ways.14 unintelligible. tually To the extent meaningless gibberish completely A compelling more subtle but no less approach equivalent of machin- and appellant’s argument answer to rests traffic, they, operating ery din of or the upon why knowledge drug oriented course, do not communicate with required by music is the Commission. drugs else, anything spect and are to or Smith, knowledge imputed to of the Commis- purveyor not within the ambit in order that a criminal sanc- imposed expression Speech and the dissemi- order. is an sion’s 153-154, required verify 13. Id. at 80 S.Ct. at 218. the truth of tion are Appellant’s statements. See controversial 10, supra, accompany- less See footnote at 41-42. cases are even Brief Those Appellant attempts They text. all involve buttress than relevant Smith. obtaining argument by pointing its based on Smith fact situations which reject to a number of be most dif- cases the con- needed information would purveyors public impossible. tention that informa- ficult even or symbols for the Commission which intelli- conclude sound gible visual beings. At been less insistent on dis- other human have charging licensees some obligations point along in- would have of human some scale verged produced telligibility on evasion of the Commis- the sounds responsibilities. own free sion’s slide over from characteristics of protected, speech, which should be By expression of the above views pollution, the Com- those noise which express have no we desire whatsoever ample authority to abate.15 mission has types value a different argu- instrumentation, music, sound, appellant’s poetry, We not think etc., may appeal invalid, express our to different class- ment we astonish- argue public. gus- of our es most diverse “De ment that the would licensee disputandum.” non tibus est But no knowl- before the broadcast has any saying style, edge, required we are to have whatever the cannot be expression put knowledge, puts over whatever the out of material it out over station, that' air radio for the licensee the airwaves. can understand (We responsibility radio to claim that it has no the individual licensees would product expected con- its to know in advance the evaluate for the radio sta- abnegate pro- completely quality tion to or the of a network what we had tent always gram, flowing panel free considered its as a discussion .all, par- quite public issues, or All in uninten- other audience licensee. tionally, appellant-licensee ticipation program, certainly not a free argument speech political reference, has told us a But with here broadcast. great quality particu- fre- deal to the of that which is about music,” quently medium of our termed “canned lar culture. may require that think the Commission Rulemaking Requirement IV. purveyors make turn We next effort to know what is reasonable contention that Commission in producer pork No the “can.” imposed on the put grocery out on beans allowed broadcasting industry. If the knowing FCC were shelf a can without what is *6 imposing duty licen indeed on its standing it and back of its content both subject sees, the to action should be quality. re- and Commission is scrutiny public being debate and of rulemak licensees, quired to radio allow ing proceedings.16 is If the Commission granted freely the of limited air use reminding simply of an al listening broadcasters channels, spew to out to the existing rulemaking ready duty, is public music, and canned whose content required. the stated conclude that totally We quality un- before broadcast is purpose the the actual result of and known. to was Commission’s and Order per- Supposedly a radio licensee is pre-existing industry of a remind duty. forming public service—that is If the licen- raison d’etre the license. duty pre-existing knowledge for this The basis specific does not have see gov- days early broadcasting, has existed since it how can it claim airways.17 regulation operating public ernment to interest? thorough of this most articulation constituting any to Far threat given duty in the Commission’s speech licensee, freedom of of the Association KFKB Broadcast Noise Control Act of Pub.L. Cf. U.S.App. Commission, 92-574, v. Federal Radio 86 Stat. 1234 No. D.C. Center 16. Citizens Communications U.S.App.D.C. 32, 35, 1204 n. 5 Program There, inquiry Policy re- wherein a Commission had Statement carry- many vealed that licensees were said: foreign language broadcasts without re- Broadcast must assume licensees having foreign any familiarity with sponsibility for which is .alb-material according- language. Broadcasters were through broadcast Their facilities. ly advised: programs all and adver- includes tising they present responsibility requires to Licensee material which public. duty procedures is' the personal . This internal be established to the licensee and maintained to insure sufficient famili- not] delegated. obligated bring arity language foreign He is to to with positive responsibility being his know what affirmative- broadcast ly upon have bear all who a hand whether it conforms to the station’s providing policies requirements material and to the through transmission his so rules. of licen- facilities Failure discharge as to assure the his and maintain sees establish such provide acceptable foreign language pro- program over sched- control gramming questions operating ule consonant with will raise serious public community.18 operation interest his as whether the station’s public serves interest.20 This 1960 and the Order chal- Statement example, In addition to this the Commis- lenged remarkably here are similar. sion has reminded broadcasters of their require Both broadcaster assume obligations specific in a number broadcast, responsibility for what is situations actively his broadcaster exercise judgment pursuit responsibili- entirely It is for the reasonable Com- ty, referring mission to exercise issue “reminders” programming specific problems result in the when ex- areas ist. The interest. The real Commission need not content difference repeating general policy between the itself 1960 Statement and Or- general policy der under attack that the statements when being programming very way. specific deals with violated in relates logical drugs programming general- rather is much more than for the Commission ly, point specifically specific problem out states that general “knowledge” policy broadcaster then illustrate how the programming. applies particular what he is in the situation. long-standing There is a It is likewise irrelevant that cur- reminding policy requires rent Order licensees of sponsibility particular programming. in a “know” what area when- *7 requirement appears imposes ever there Such no to be licensee indif- bur- upon broadcasting quite industry. ference. A den deed, notice In- similar challenged requirement one spect here was issued re- that the licensees with foreign language broadcasting.19 broadcast in the interest necessi- Report leading Deceptive Policy Advertising, and Statement of FCC 61- re: (November Programming 7,1961). Commission En Banc In- quiry, Fed.Reg. Appellant, reply brief, attempts in its 30 R.R. distinguish examples by pointing these they unique that out deal with facts and Concerning Foreign 19. Public Notice Lan- upon legal are based different theories guage Programs, Regs. &P. F. Radio than those involved in case. this This is 2d 1901 examples true. We make use here, Ibid. however, very pur- for the limited pose illustrating that the Commission Responsibility Licensee With often draws attention to and makes state- Respect False, to the Broadcast of Mis- specific regarding ments areas of licensee activity. knowledge A. on their sort of tates some Undoubtedly, reason the part. generally indisputable that It is point in the Or- stressed may not line draw a be the Government broadcasters’ of certain because der was impermissible permissible tween they either did contention that absurd imprecise speech in an unclear and what or could not know not “men of intel manner ligence common III, broadcasting. in Part noted As we necessarily guess its knowledge argued no it cannot meaning appli differ as its required been of broadcasters. has ever for the cation.” shall assume We appellant’s applies form In its less extreme moment this standard although that, industry. seems to be contention full to the broadcast force knowledge always been has some form the Commis Even under this standard impose unconstitutionally required, and Order is not sion’s Order knowledge greater vague. fact, much burden has In the Commission pre- broadcasting industry job than has explaining done an admirable argument viously degree knowledge expected existed. is base- nature knowledge degree requisite less. in Part broadcasters. As illustrated quite rather, but, opinion, liber- is not absolute II of this court no dif Indeed, understanding not less ficulty could do a licensee al. what the Commis obliga- expects fulfill its asked still than is sion of its licensees. public interest. to broadcast obfuscation, Removed from sum, of the thrust Commis- the main structure, purpose requirements later Or- Notice and earlier sion’s First, quite of the Order clear. song presents the is that whether der attempting Order defines ad- moon-struck of a banal observations Secondly, provides achieve. three ex- alley enraged olescent, two resembles amples ways a broadcaster attain can, garbage fighting or con- cats goal. Thirdly, Order does of a master reflections tains poet, subtle attaining forbid a broadcaster igno- may not broadcast a licensee goal by another means.24 the Or-~A Thus program- his content rant infirmity der avoids the constitutional ming.22 vagueness by ways explicit providing require- a broadcaster meet its Vagueness Asserted V. avoiding simultaneously ov- ments while strenuously urged Perhaps the most limiting compliance to l erbreadth appellant’s ar- meritorious and least guments specified. the methods upon the contention are based imper- the Commission’s that missibly B. vague. this common From argues starting point, appellant argument A based on second unconstitutionally vague, vagueness alleged the Order of the Order vague is so that the Order that the Commission has dis abused its failing clarify its discretion Commission abused cretion in the nature fusing clarify requirements. appel- Specifically, it. of its Appellant attempts argu- says prior *8 to buttress ord to broadcast. footnote See imposes Pre-screening 8, supra. way a ment Order one pointing widespread may obliga- use of live that a broadcaster fulfill programming. argument and network tion. impossible is that since to it know Connally Co., v. General Const. 269 prior types to broadcast is in what those L.Ed. 46 S.Ct. 70 U.S. programs, must, the Notice it re- (1926). quires any knowledge all, impose a new ignores duty. argument generally in Part II fact that 24. See discussion imposes require- opinion. the Notice absolute no pre-screen know or what a reC- ment to charges abused VI. lant Commission Conclusion declining issue a de- its discretion claratory to spite forebodings In of the horrendous acceptability on the brought appellant into court the plan proposed complying of its for with recently appellant fact is that had has the Notice. Likewise, its license renewed. there has showing suggestion been no or that the clearly It is within the discretion of standard enunciated in Order has Declaratory Commission issue a deny any employed to been license to a proposal.25 on a licensee’s It is broadcaster. If such denial does occur a however, clear, equally the Commis and can or be shown be due to unfair required sion is not to issue such a de misapplication of the a claratory merely because a statement guidelines (as own II Part described for one.26 There are broadcaster asks opinion), of our then redress be 7,500 country. radio stations over in this sought time, in the courts. Until required pass If Commission were appellant might energies commit its upon, approve disapprove, or the meth simple understanding task operations ods of of each of these sta said, clearly already Commission has tions, the administrative would task be instituting rather than more colorful but enormous. rule This disinclination to already far less fruitful actions before here is in accord the Commission’s heavily burdened federal courts. long standing policy refusing to issue given above, For the reasons the ac- interpretative rulings advisory opin tion of the Federal Communications ions whenever the critical facts are not Commission is explicitly possibility stated or there is a Affirmed. subsequent events will alter them.27 ON FOR MOTION REHEARING agency An should not administrative EN BANC compelled clarifying issue state BAZELON, Judge, Before Chief ment its failure to so can unless do WRIGHT, TAMM, McGOWAN, LEV- shown be a clear of discretion. abuse ENTHAL, ROBINSON, MacKINNON, reasonably the Commission could Here Judges. WILKEY, ROBB and Circuit enough conclude that had said up that the rest was to the “licensee’s PER CURIAM. programming.” individual for rehearing in- for en banc The motion therefore, not, We will com 28 itiated a member of the Court ruling pel the issue a regular denied, a ma- active service is plan compli proposed Judges for jority who of the Circuit regular having service not voted active ance. programs agency, with tation of devoted to the discus- 25. “The like effect as orders, public . case dis- sion of issues. Given of other its sound long-estab- cretion, may declaratory [the Commission’s] order to issue authority controversy program lished to consider terminate or remove uncer- con- general approach probably tainty.” tent, 554(e) § U.S.C. dangers censorship (emphasis added). minimizes pervasive supervision.” Banzhaf v. applying interest stand- “[I]n U.S.App.D.C. 14, 27, programming, ard the Commission saying tightrope walks a between too much saying little. too most areas g., Facilities Use Broadcast by imposing this dilemma rbsolved Office, Candidates Public F.C.C. only general affirmative duties —e. 2d strike in- a balance between the various provide community, 28. Banzhaf v. terests of the or to presen- 1082,1095 of time reasonable amount

603 35, 5, (Rule it Procedure). favor of Federal Rules a “Public Notice” issued on March Appellate of 1971.4 5The “Licensee Notice, entitled Responsibility to Review Records Before Judge Separate Statement Chief specifically Their did Broadcast”, not grant why BAZELON as to hearing he would songs. prohibit playing particular sua, the of banc, sponte. en might But broadcasters well have read Judge: BAZELON, prohibition. thing, Chief as a one two For including Commission, members of the litigation concerns series of originator reported the member be the by the Federal Com- directives issued Notice,5 appended a formal the to it which in 1971 munications Commission explaining goal statement was broadcasters advised the nation’s they “discourage, eliminate, the not “respon- expected to exercise playing pro records tend which sibility” regard playing of illegal glorify the use mote drugs.”6 “drug-oriented” popular The and/or records.1 after Five weeks argued impact petitioners that the issued, Bureau of was the Commission’s rulings cen- indirect Commission’s was Compliance provided Complaints and songs. panel The sorship songs the names 22 decided the case court which heard “so- had attention as come Commission’s statements 7 song lyrics.” drug-oriented called pol- reiterated a traditional Commission icy reported licensees must “as- broadcast The Commission’saction was —that organs press sume for all material by responsible as through their which is facil- censorship.8 appears radio act of reviewing panel de- ities”.2 After quickly certain moved to ban stations rehearing cision, of the case songs. stopped I moved stations some cases regardless subject lyric, en banc.3 playing, particular whose artists all the works of panel opinion the lan- The found that eye- Commission’s lift the views guage directives the Commission’s list circulated Broadcasters brow.9 songs. popular purport does to censor throughout industry songs of 22 language under- But that can play” list.10 a “do not light stood course of conduct. subsequent “Mem- Commission's Order”, Opinion and issued orandum Commission’s initial statement designated 1971,11 16, songs April “drug-oriented” area subsequent Order, infra, 7. In its the Com- 1. of the broadcasters’ “re- As nature reported songs 22 mission had sponsibility”, pp. 603, 604, infra. see Department been identified 599, Broadcasting 2. Yale at Co. Army. Apparently quoting Report 600, Statement of Pol- military before officials conferred issuing icy Program- re: Commission En Banc Notice. 31 the initial Public Fed.Reg. 7291, 7295, ming Inquiry, 25 SO (1971). did 2d The Commission (1960). 1902, R.R. of Narcotics with the Bureau consult Times, Drugs. 35(a), Dangerous Appellate N.Y. 3. Rule Federal Rules of 41, p. 28,1971, c 1. This is —and be —an Procedure. should March See, g., procedure. unusual e. United quoted 2d at 32 FCC headlines 8. Sambro, 75, States v. Times, (1971) March N.Y. (Statement 454 F.2d 918 of Chief p. 28, c. 3. Ry. Judge Bazelon) ; Southern Co. v. (5th 1969) Lanham, 408 F.2d 348 Cir. Brandywine- 87-88; App. at see 9. Joint (dissent rehearing en denial Radio, 153 U.S. Inc. v. Line Main banc). App.D.C. (Chief dissenting) Judge at Bazelon 4. 28 FCC 2d 409 n. 60. e., 5. I. Lee; E. Week’s Cmr. Robert of. App. May 1971, p. 148. Profile, Broadcasting, Joint 2d 32 FCC FCC 2d *10 604 15 assignment.” The confusion was statement” sible as its “definitive Commission Congression- crystallized in subject, appeared later to backtrack

on the repudiated testimony Burch. FCC Chairman al The Order somewhat. point, songs. eval- offered that At one the Chairman It of 22 stated list play one “is records to assurance: uation of which solely licensee”, “[t]he and that for the [Cjontrary . . Chairman Burch: . or review make Commission cannot statement Commissioner Johnson’s judgment.” individual licensee drug lyrics, we did that we banned fur- order But the went drug lyrics. . ban rescinding the Public Instead ther. following however, later, Moments Notice, its basic restated the Order ensued: jeopard- could threat: “the broadcaster failing li- to exercise ize his license asking is: All I Senator am Nelson: As responsibility area.” censee somebody atten- the FCC’s If calls to responsibil- recognized, “licensee we have play- particular station that a concept.12 ity” It could is a nebulous ing songs that, fact, promote the do opinion panel taken to mean —as judg- drugs in the use of unanimous must that “a broadcaster takes it — you came Commission; ment broadcasting.” theOn ‘know’ what conclusion, you do ? to that what would Notice, light the earlier hand, I I Chairman Burch: know warnings light renewed of the do, probably I vote to take would would “drug- dangers of about the Order away.16 the license songs, popular oriented” “responsibil- have concluded primary forum for court is the ity” “prohibition”. meant licensing judicial review regulation, reviewing the Commis- themselves The Commissioners jin g. ex- sion’s nwteifflmcal areas —e. The Order actions' unclear on the matter. t opera- policy pressed mechanical broadcasters’ full adherence to prior ons and interference between stations But two Commission- Notice. great concurring to its -we deference indicat- ers statements accord issued ¡eisions. is due But deference restored the status no such the Order involving prior quo A the Commission’s to the March 5 Notice.13 cases dissenting regulation program >ublic interest” third Commissioner issued a specify indicating “power did intent. the Order statement quo.14 aterial interest A fourth which the not restore the status enigmatic be broadcast Commissioner issued a rather lires forbids general indicating agreement author- .rries the seeds of the statement his ” 17 y to . but censor. Courts have and the Order ob- both the Notice ¡dicingjecial serving “impos- protect First established an Cong., Sess., pt. League 1st at 12. B’nai B’rith 92d Anti-Defamation (1971) FCC, U.S.App.D.C. 146, 403 F.2d v. U.S.App.D.C. 17. Banzhaf v. (1968), Bartley (Cmra, cert. 405 F.2d 2d 32 FCC Lee). denied sub nom. Tobacco Institute Rex H. 842, 90 24 L.Ed. 396 U.S. S.Ct. (Cmr. Johnson). at id. 2d 93 (Cmr. Wells). emphasize 15. Id. at 382 that our cautious But we approval does not license [in Banzhaf] Hearings on the Effect of the Promotion the airwaves for to scan Advertising of Over-the-counter dis- material with no more offensive Drugs Business, Competition, on Small “public criminating than the lens Public, and Health and of the Welfare “public interest” or even the health”. Monopoly Before the on Subcomm. Comm, Business, at 1099. Senate Select Small *11 rights special exper- supervision elusion and Commission Amendment doing tise for so.18 of in which the manner that function performed, is still re- Button, Mr. In NAACP v. Justice jpower tains the ultimate to determine reg- “precision Brennan observed that of permitted and what is not is ulation a touchstone” in the the air.21 expression.19 area freedom There Judge (now Burger Justice) found Chief precision is no The Commission’s here. reasoning this “unanswerable.” spec- chameleon-like reflect the directives League B’nai B’rith Anti-Defamation trum from confusion to deliberate obfus- FCC, U.S.App.D.C. 148, 403 146, v. 131 cation. The look to the im- court must differing (1968). 169, F.2d 171 In the pact directives, of these their reason- case, circumstances language.20 review is all the more Such But the court be answerable. necessary direc- the Commission’s where responsibility to face cannot abdicate its tives are couched in code words question. “public license renewal interest” such as responsibility”. years or “licensee Seven panel opinion indicates that ago, a member of the Commission ex- challenges present to the Commission’s plained : premature; that the Com- directives ¡Talk “responsibility” of a of a final sanction is denial broad- mission’s license, simply im- Í caster connection and until that sanction is euphemism self-censorship. posed, petitioners demon- cannot attempt any from the the onus of strate harm to shift action viewpoint against speech Opposed to this from the Commissionto actions. recognized principle broadcaster, it seeks the often but the same legal much threat can have as sanction of certain views suppression ^result— par- arguments. of threatened imposition effect on the conduct Since \nd prin- itself.22 If that “responsibility” ties as the sanction in- of such argue, petitioners ciple here, compulsion applies per- as volves Commission cognizable judicially in- then form the there function selection ex- FCC, 842, 50, Maryland, 58, 51, 24 L.Ed. 18. Freedman v. 396 U.S. 90 S.Ct. 380 U.S. 734, 2d 93 85 S.Ct. 13 L.Ed.2d 649 League 415, 438, 328, 340, Complaint of Anti-Defamation 19. 371 U.S. 83 S.Ct. KYTM, Against B’rith Station 9 L.Ed.2d 405 B’nai (Cmr. Loevinger, 385, 6 2d Arizona, v. Bar of Baird State concurring). 1, 702, 91 401 U.S. 27 L.Ed.2d 639 S.Ct. 407, 414, Keyishian (1971) ; Regents, 62 v. 316 U.S. Board of CBS v. ; 1194, (1941) 589, 675, see L.Ed. S.Ct. 86 1563 385 17L.Ed.2d U.S. 87 S.Ct. Hardin, ; (1967) Bagget Bullitt, Defense Fund Environmental v. 629 360, v. 377 U.S. 391, 1093, U.S.App.D.C. 1316, 12 138 428 84 S.Ct. L.Ed.2d 377 ; ; (1970) (1964) Books, Sullivan, state the candid Inc. v. 1098-1100 Bantam cf. Whitehead, Clay 58, 631, 68, Director of ment 9 T. 372 U.S. 83 S.Ct. L.Ed.2d Policy (1963) ; Button, in the White Telecommunications NAACP v. U.S. why 415, (1963) ; House, 328, license re the threat as 83 S.Ct. L.Ed.2d 405 program California, 147, means of moval is an effective Smith v. U.S. (1959) ; value “The sword control: S.Ct. L.Ed.2d main cf. 92 hangs, Tatum, 12-13, Laird Damocles v. 408 U.S. you guy’s ; drops. take a license S.Ct. 33 L.Ed.2d 154 Banz Once any leverage away, you longer no haf v. 32- Washington Post, against him.” p. A 17 col. 3. March cert. denied sub Tobacco Institute nom. v. jury begin to as soon gov- programming alter to avoid UNITED STATES of America reprisal.

ernmental BROWN, Appellant. James J. presents ques- several other This case significance: No. 24646. Is tions considerable song constitutionally pro- popular United *12 Appeals, States Court speech partic- tected Do the form ? District of Columbia Circuit. songs ular at which these directives Argued 8, 1971. Nov. aimed have a demonstrable connection 8, Decided Jan. 1973. so, illegal activities?24 If is the Rehearing 5, April Denied 1973. “discourage remedy proper or elimi- songs? playing nate” the Can regulatory authority assert over constitutionally could not material regulated printed media ? impact

Clearly, of the Commis- judicial ripe

sion’s order review. review,

And, on it would be well warning:26

heed Lord recent Devlin’s press

If freedom speech] perishes, freedom of

[or

will not be sudden death. dying long

It will be a time from a

debilitating disease caused a series measures, which, erosive each of singly, good

examined would have a

deal to be said for it. Popular songs might 50, considered mere 24 L.Ed.2d 93 California Cf. entertainment, pollution. noise even LaRue, 109, v. 409 U.S. 93 S.Ct. Broadcasting FCC, Yale Co. v. J., (Marshall, L.Ed.2d 342 dis hand, the other On senting) historians sociologists popular noted Brandywine-Main Radio, 25. See Line Inc. song important been an medium of FCC, v. political, moral, expression and aesthetic (Chief Judge Bazelon, dissent- Morison, in American life. His- Oxford ing) (application of the Fairness Doc- tory People, xxiii-xxvii, the American trine). Unlike “Fairness Doctrine” 223, 238, 250, 399, 479, 634, 860, 917 cases, there can be no assertion here that (1965) ; Reich, Greening Amer- chilling pro- effect is incidental ica, viding viewpoints access to the media for 24. The evidence in the record on this that would contribute fuller debate point is the statement of the Director of question issues. The is thus Danger presented Bureau of Narcotics whether the rationale Drugs expressing strong ous doubt Doctrine”, any “Fairness reali- any “drug- there is connection between media, ties of the electronic warrant intru- lyrics” song drugs. oriented and the use of speech rights sion on broadcasters’ free Times, p. The New York March in this case. c. 1. See Banzhaf v. 132 U.S. Salant, Quoted remarks Richard S. App.D.C. 14, 31-32, 1098- to the Boston Univ. School of Public (1968), cert. sub nom. den. Tobacco Broadcasting, Boston, April 28, Mass. Institute U.S. S.Ct.