In Re Complaint of THE BLACK CAUCUS OF THE U.S. HOUSE OF
REPRESENTATIVES against AMERICAN BROADCASTING CO., INC., COLUMBIA BROADCASTING
SYSTEM, INC., AND NATIONAL BROADCASTING CO., INC.
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 249
RELEASE-NUMBER: FCC 72-1193
February 6, 1973 Released
Adopted December 20, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONERS JOHNSON AND HOOKS DISSENTING AND ISSUING
STATEMENTS; COMMISSIONER H. REX LEE CONCURRING IN THE RESULT.
OPINION:
[*249] 1. The
Commission has before it (1) the complaint and request for declaratory ruling
by the Black Congressmen of the U.S. House of Representatives n1 (Black Caucus), filed on February 1, 1972; (2)
comments in opposition by the American Broadcasting Companies, Inc. (ABC), the
Columbia Broadcasting System, Inc. (CBS), and the National Broadcasting
Company, Inc. (NBC), dated March 20, 1972; (3) the Black Caucus' reply to the oppositions
of ABC, CBS, and NBC filed on April 20, 1972, and (4) comments of the National
Committee for a Effective Congress in support of the Black Caucus' petition,
filed on May 15, 1972.
n1 The Black Congressmen of the U.S.
House of Representatives are also known and organized under the name of
"Black Caucus." The Black Caucus members filing this complaint are
the following thirteen members of the United States House of Representatives:
Hon. William L. Clay (Missouri), Hon. Shirley Chisholm (New York). Hon.
George W. Collins (Illinois), Hon. John J. Conyers, Jr. (Michigan). Hon. Ronald
V. Dellums (California), Hon. Charles C. Diggs, Jr. (Michigan), Hon. Walter E.
Fauntroy (District of Columbia), Hon. Augustus F. Hawkins (California), Hon.
Ralph H. Metcalfe (Illinois), Hon. Parren J. Mitchell (Maryland), Hon. Robert
N. C. Nix (Pennsylvania), Hon. Charles B. Rangle (New York), and Hon. Louis
Stokes (Ohio).
SUMMARY OF PLEADINGS
2. The Black Caucus
(hereinafter petitioners) requests that the Commission direct the three
national television networks to make available to them a free half -- or full
-- hour of prime evening time to respond to the President's 1971 State of the
Union message so that they can present their views on racial and other
important issues. President Nixon delivered his 1971 State of the Union
Address to a joint Session of Congress on January 22, 1971, at 9:00 p.m.
E.S.T. The Presidential message was broadcast live by the three major
national [*250] television networks (ABC, CBS and NBC).
Petitioners contend that "Although the President chose to discuss a number
of important and controversial issues, he remained notably silent on the
serious national problem of institutional racism against black and other
minority Americans." Petitioners state that they are uniquely qualified to
speak on the issue of racial problems in that they represent approximately
3,400,000 black Americans; that they won their seats by large voting margins;
and that they comprise all of the black Congressmen in the House of
Representatives.
3. Petitioners state that they
requested the three national television networks to accept and broadcast a
pre-taped or filmed documentary over which they would exercise complete control
of content and format, but were refused that opportunity due to network
policies which exclude all documentaries and other programming which discusses
controversial issues and which is not produced and controlled by the
network. n2
n2 Petitioners wrote the three major
television networks on January 22, February 16, and May 3, 1971 and requested
free time to reply to the President's January 22, 1971 State of the Union
message. Congressman William L. Clay, on behalf of his black colleagues
in the United States House of Representatives, wrote the three networks on
January 22 and requested reply time to present the views of the Black Caucus on
the "State of Affairs" of black Americans. Mr. Clay stated:
"On the basis of the Fairness Doctrine as outlined by the Federal
Communications Commission, we request equal and comparable time..." ABC,
CBS, and NBC refused his request on the basis that they had already broadcast
contrasting points of view to those expressed by President Nixon in his State
of the Union message. ABC stated that on January 27, 1971 it presented a
special one-hour reply to the President, featuring Senate Majority Leader Mike
Mansfield. CBS, according to petitioners, claimed that its offer of time
to the Democratic Party exhausted its obligation to provide reply time and that
issues raised by the Black Caucus would be covered in CBS news and information
programs. NBC stated that it had broadcast contrasting views to the
President in NBC news, interview, panel discussion and special programs.
On February 16, 1971 petitioners
again sent letters to the three national networks requesting time. This
request included the argument that Congressmen should have a limited but
significant right of access to network programming, and that this right of access
should accrue to them "even if the President had never delivered his State
of the Union address." Petitioners based their request for direct access
on the First Amendment and the separation of powers concept in the U.S.
Constitution. The networks again refused petitioners' request for time.
Petitioners on May 3, 1971,
following meetings with CBS and ABC, wrote to the networks and requested that
they broadcast a program "produced and supplied to the network by the
Black Caucus, which would devote itself to the problems of racial minorities in
this country." ABC and CBS again refused this request. ABC, in a
letter dated May 21, 1971, stated that "... ABC will not accept
documentary programs dealing with controversial issues which are not subject to
the editorial supervision and control of ABC News." In a May 20, 1971
letter, CBS stated that broadcasts dealing with current controversial issues
will be produced under the direction and control of CBS News. NBC stated that
"NBC News produces a weekly half-hour series called 'Comment'... The
format of the program provides for 'direct and unfiltered speech...'" NBC
suggested that the "Comment" program could be used to present the
views of the Black Caucus. However petitioners interpreted this reply to
be a rejection of their request, in that the "Comment" program is
produced and controlled by NBC in most respects.
Petitioners claim that:
they could not adequately perform
their representative function as elected Congressmen of the United States
unless they were allowed to speak periodically and directly to their
constituents and all citizens of the country, in their own words free of
network editorial supervision.
Petitioners therefore ask that the
Commission:
(1) Rule that the three television
networks' policies of categorically barring access to the facilities they
control for programming produced by members of Congress, addressed to important
and current national issues of the day is fundamentally arbitrary, irrational,
and unsupportive of the public interest," contrary to the "separation
of powers" doctrine in Articles I and II of the Constitution, contradicted
by the fairness doctrine obligations in the Communications Act of 1934, and
violative of the basic freedoms of expression in the First Amendment;
[*251] (2) Issue a
declaratory ruling that the three national television networks must make
available an appropriate number of prime time hours each year, generally
comparable in amount to the time given members of the Executive Branch, for
direct unfiltered political speech under the exclusive control of elected
representatives of the Congress, including Senators and members of the House of
Representatives, and should fairly apportion that access time among leading
spokesmen or groups of spokesmen on current issues of national importance; and
(3) Order the three national
television networks either to make available to complainants a half-hour or
full-hour of network programming time, free of charge, to present a message of
their own choosing, on racial and other issues, or to show cause why
complainants are not the appropriate Congressmen to speak directly to the
nation on a topic over which they exercise complete content control, and in a
format of their own choosing.
4. Petitioners state that
television networks do not have to accept all requests by Congressmen for air
time, but contend that networks should not be allowed to extend to the
President unconditional prime time access while allegedly categorically
rejecting all such requests for time by Congressmen on the basis of a policy
that rejects programming not initiated and controlled by the networks.
5. Petitioners base their
complaint and request for declaratory ruling on (1) the separation of powers
concept in Articles I and II of the Constitution, (2) the fairness doctrine and
(3) various First Amendment arguments. Regarding separation of powers,
petitioners contend that the networks have impaired the power of Congress to
function as an equal and coordinate branch of government by giving the President
a right of access whenever he chooses to address the electorate but denying
members of Congress the same opportunity. Petitioners state that the
inability of Congressmen to converse with their national construency has
destroyed the "delicate balance" of power created by Articles I and
II of the Constitution and has diminished the power of the legislative branch
to such a degree that it may be unable to "check and balance" the
power of the President. Petitioners quote from Senator Fulbright's
testimony before the Subcommittee and Communications of the Senate Committee on
Commerce, 91st Cong., 2nd Sess., Aug. 4, 1970:
Communications is power and
exclusive access to it is a dangerous, unchecked power... As matters now
stand, the President's power to use television in the service of his policies
and opinions has done as much to expand the powers of his office as would a
constitutional amendment formally abolishing the co-equality of the three
branches of government.
6. Petitioners also interpret
Article I, Section 5, Clause 3 of the Constitution, which requires each House
of Congress to keep a permanent journal of its proceedings, as suggesting
"that the Framers imposed a constitutional duty on the Congress to
communicate with its electorate." Petitioners assert that a policy denying
them access to the media prevents them from fulfilling their Constitutional
duty to communicate with their constituency. Petitioners conclude that
the Constitutional requirement for open communications between Congress and its
constituency can be fulfilled only by granting Congressmen periodic, direct
access to the facilities of network television.
7. Petitioners also contend
that the fairness doctrine requires a limited right of Congressional access to
the broadcast media. Petitioners [*252] state that the
fairness doctrine requires licensees affirmatively to cover controversial
issues of public importance, and that the doctrine provides more than a mere
right of rebuttal to a licensee's own editorial speech. Petitioners cite
the Commission's 1949 Editorializing Report, 13 F.C.C. 1246 (1949), as
imposing on licensees an affirmative duty to seek out concerned spokesmen on
new and important issues and give them the opportunity to initiate debate, over
and beyond their obligation to make available on demand an opportunity for the
expression of opposing views. Petitioners contend that licensees should,
in part, serve as moderators between competing spokesmen on important issues,
and not merely present all viewpoints themselves. Petitioners state that
a licensee would fulfill its fairness obligations by making an appropriate
number of opportunities available for self-initiated and produced programs and
by preserving a rough balance between the self-initiated views of the speakers.
Petitioners assert that, in the case of the President, licensees are obligated
by the fairness doctrine to cover some speech which he initiates.
Therefore, petitioners conclude, licensees must afford a comparable opportunity
for self-initiated speech by members of Congress. Petitioners state that
licensees do not have complete control over access and have been required to
provide direct personal access under the fairness doctrine or one of its
corollaries n3 to specific individuals who then
have substantial control over the content and format of the presentation.
n3 See Section 315 of the
Communications Act of 1934, as amended, Section 73.123 of the Commission's
Rules, and Nicholas Zapple, 23 F.C.C. 2d 707 (1970).
8. Petitioners argue that the
First Amendment guarantees them a limited free right of access to network
television to communicate their message in any mode or format they
choose. Petitioners contend that the networks have created a national
forum for communication and, once having opened it to the President and
themselves, cannot arbitrarily and selectively close it to Congressmen.
Petitioners state that the First Amendment prohibits governmental action
"abridging the freedom of speech"; that political speech is involved
in this controversy; and that the "documentary" mode of speech is
often considered the most effective form of television and is entitled to full
First Amendment protection. They contend that petitioners' speech is
being abridged by a network policy which prohibits them from broadcasting any
program dealing with a controversial issue of public importance which is not
produced and controlled by the networks. Petitioners state the Red Lion
Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969) and Business Executives Move for
Vietnam Peace v. F.C.C., n4 U.S.
App.D.C. , 450 F.2d 642 (1970), cert.
granted U.S. (1972), stand for
the idea that the actions of broadcast licensees are so impregnated with
government character as to become subject to the Constitutional limitations
placed upon state action. Petitioners state that First Amendment analysis
of "access" to a speech forum is generally conducted by balancing the
interests of speakers in reaching an [*253] audience through the
forum in question, against the importance of other speech and non-speech forum
uses, and the extent to which they may be disruptive. Therefore,
petitioners conclude that any policy initiated by an institution imbued with
governmental character, which prohibits all outside produced programs dealing
with controversial issues, must be voided, absent some strong national policy
or compelling interests which would justify it.
n4 Petitioners note that the Court
in BEM delineated three First Amendment rights of the public which attach to the
broadcast forum; (1) the public has an important right to receive a full range
of ideas and information on important and controversial subjects, (2) the
public's interest in the mode or manner -- as well as the content -- of public
debate aired on the broadcast media, and (3) the interest of individuals and
groups in effective self-expression.
9. With respect to balancing
the interests in the present case, petitioners contend that the three national
networks have available 3,834 prime time hours per year an that relinquishing a
small fraction of such time would not significantly impair or disrupt
respondents' normal operations. Petitioners argue that political speech
is worthy of the highest First Amendment protection. Petitioners also
stated that they have a strong interest in communicating their views to the
electorate. Petitioners argue that restricting petitioners to short news
clips, interviews or political debates does not provide them with an adequate
opportunity to express their views. Petitioners acknowledge the
broadcasters' First Amendment interest in the news and documentary programs
they produce, but state that most network programming is produced without the
supervision and control of the networks and that the networks perform more of
an "allocative" than a "speech" function in choosing
between programming drawn from independent or outside sources.
Petitioners state that the limited right of access will not subject the
networks to significant disruptive burdens. Petitioners contend, therefore,
that their interest in being given a limited right of access outweighs any
competing interest of the broadcaster in that same time.
10. ABC and CBS rejected
petitioners' request for free time to broadcast a documentary initiated and
produced by themselves on the basis of their stated policy against the
broadcast of any program dealing with a controversial issue which is not
produced or controlled by the network itself. n5 NBC, while also refusing to grant petitioners'
request, based its refusal on the fact that it already had presented
contrasting views on the topics the petitioners wished to discuss. NBC
did not base its rejection on any stated policy against the broadcast of
documentary programming which is not produced or controlled by NBC. NBC stated:
n5 See footnote 2.
In fact, NBC did not take the
position that its facilities were barred to programming produced by members of
Congress, and... attached correspondence bears this out. NBC has
presented a number of programs over the years, on both a paid and sustaining
basis, in which members of Congress were given access to NBC facilities to
present programming, the substantive content of which was "produced"
by members of Congress. In fact, at NBC's invitation, members of the
Black Caucus participated in a program in which NBC's production and control
was limited to furnishing the studio equipment, production personnel and
identifying the speakers -- in effect the substantive content was
"produced" by the participants.
NBC further stated:
That the First Amendment applies to
broadcasting is not in dispute. Nor do we dispute that it protects the
complainants' right of free speech. There is no question that
complainants may exercise this right in a program, documentary or
[*254] otherwise, which they themselves produce and distribute to
interested broadcast stations and CATV systems.
Petitioners did not view the NBC
answer as responsive to their request for free time to broadcast a documentary
produced by them and concluded that "It remains unclear, therefore,
whether NBC rejected complainants' request on policy grounds, or on the merits
of their specific request."
11. All three networks in
their March 20, 1972 reply state that the petitioners' request for a right of
Congressional access should be denied by the Commission. On grounds other
than the fact that the broadcasts would be produced by the petitioners, the
three networks note that petitioners did not allege that the networks violated
the fairness doctrine by failing in their overall programming to present
opposing views of the President's State of the Union message. The
networks state that the exceptions to licensee discretion in selecting
spokesmen are specifically prescribed in the Commission's Rules and Section 315
of the Communications Act and that the networks need not give any specific
group or individual "access" unless it falls within one of these
exceptions. Regarding the separation of powers argument, the networks
state that petitioners failed to cite any reference to the Constitution,
applicable statutes, regulation or case law supporting their contention that
the Constitutional concept of separation of powers requires a right of access
to television. The networks reject petitioners' argument that the
Constitutional requirement for Congress to keep a journal should be interpreted
to mean that Congressmen have a constitutional directive to communicate on the
broadcast media to their electorate. The networks state that the journal
requirement is really a requirement that Congress record its activities, not a
directive to communicate in the media.
12. The networks state that
petitioners' contention that the fairness doctrine requires Congressional
access is inconsistent with both the Commission's and the court's
interpretations of communications law, and that the fairness doctrine should
not be reconstructed so as to transform its focus from an issue-oriented to a
spokesmen-oriented doctrine. The networks state that a similar right of
access was rejected by the court in Democratic National Committee v. CBS,
Inc., U.S. App.D.C.
, F.2d (decided February 2,
1972, Case Nos. 71-1637 and 71-1723) (hereinafter DNC). The networks
state that the Commission has consistently held that licensees must have
sufficient control as to format, spokesmen and scheduling in order to insure
that the public is adequately informed. The networks also reject
petitioners' First Amendment arguments, stating that the Amendment should not
be used as a weapon to carve out a personal right of access of
Congressmen. The networks claim that petitioners' right of access would
hinder rather than foster public debate and therefore it would become
increasingly difficult for the networks to further the First Amendment goal of
preserving an uninhibited marketplace of ideas. The networks also reject
petitioners' use of BEM, supra., to uphold their Constitutional
arguments. The networks contend that BEM dealt only with time
relinquished by broadcasters to others (i.e., commercial time), in which
broadcasters have no strong First Amendment rights. The networks
[*255] contend that since licensees do not as a regular practice
relinquish any program time to outsiders and there is a strong First Amendment
interest of broadcasters in non-commercial speech, BEM does not apply to this
case.
13. Petitioners, in reply to
the opposition of the three networks, contend that a Congressional right of
access to the media will not create unworkable administrative burdens.
Petitioners state that the networks have the skill and expertise to determine
what Congressmen and what points of view should be broadcast. Petitioners
note that the networks have always made such judgments in determining what to
cover and who should appear on their network news interview programs.
Petitioners argue that their request will not be an intrusion on the
traditional journalistic role of the broadcaster, in that the licensee still
will be able to exercise discretion concerning what stories to cover and what spokesmen
to broadcast. Petitioners assert that the documentary is one of the best
techniques for educating the mass television audience and that the networks
have failed to state why they find it important and necessary to broadcast only
documentaries produced and controlled by themselves. Further, petitioners
state that the DNC decision which the networks relied upon to argue that the
fairness doctrine does not require Congressional access is inapplicable to the
present proceeding. Petitioners also state that their request would not
interfere with network control over their own documentary programming.
Petitioners conclude "that, at most, members of the public would be
exposed to additional programming -- programming not subject to the editorial
supervision and control of the networks."
14. The National Committee for
an Effective Congress (NCEC) submitted comments to the Commission on May 15,
1972 in support of petitioners' request for a Congressional right of access to
the media. NCEC states that the "powerful medium of television has
increasingly become the sole preserve of the Executive Branch for the
promulgation and defense of its policies." NCEC contends that if
Congressmen are not given the opportunity to utilize television, "... a
dangerous imbalance in communications power will exist, which will increasingly
distort the functioning of a system based on 'separate but equal' branches of
government." NCEC states that the "Speech and Debate Clause" n6 and the requirement that Congress maintain a journal
indicate that Congress has a duty to communicate its view to the people.
NCEC states that the language of the Constitution of necessity must be read to
reflect the technological developments of the 20th century. NCEC
concludes that if the President is given a right of access to communicate to
the people whenever he wishes, the spirit and intent of the Construction
require that the same privilege be afforded members of Congress.
n6 Article I, Section 6, Clause I of
the United States Constitution states in part that Senators and Representatives
"... for any speech and debate in either House,... shall not be questioned
in any other place."
DISCUSSION
15. We shall consider
initially petitioners' contention that the fairness doctrine requires a limited
right of Congressional access to the [*256] broadcast media.
(See paragraph 7 for petitioners' arguments.) Petitioners do not state that the
networks have failed to fulfill their fairness responsibilities regarding
racial issues in the United States; rather they argue that they as a group
should have specific access to discuss the matters over and beyond any
network's fairness doctrine obligation to present contrasting views on
controversial issues. Petitioners assert that just as the networks cover some
of the President's self-initiated speech, so must they afford a comparable
opportunity for self-initiated speech by members of Congress.
16. The broadcast system which
Congress established has been fully described in such landmark decisions as
National Broadcasting Company v. U.S., 319 U.S. 190 (1943) and Red Lion
Broadcasting Co. Inc. v. F.C.C., supra. This system was based upon the unique
nature of radio, in that "unlike other modes of expression, radio
inherently is not available to all. Because it cannot be used by all,
some who wish to use it must be denied." NBC v. U.S., supra at 226.
Congress created a system of licensing private entities for short terms, and
made it incumbent upon them to operate their facilities in the public interest.
As the court stated in Red Lion, supra, at p. 394, licensees are "...
given the privilege of using scarce radio frequencies as proxies for the entire
community, [and are] obligated to give suitable time and attention to matters
of great public concern."
17. The Commission has
consistently stated that, with some exceptions not applicable to this case, the
licensee has discretion in discharging his public interest obligation.
The Commission in its Editorializing Report stated:
It should be recognized that there
can be no one all-embracing formula which licensees can hope to apply to insure
the fair and balanced presentation of all public issues. Different issues
will inevitably require different techniques of presentation and
production. The licensee will in each instance be called upon to exercise
his best judgment and good sense in determining what subjects should be
considered, the particular format of the programs to be devoted to each
subject, the different shades of opinion to be presented, and the spokesmen for
each point of view. In determining whether to honor specific requests of
time, the station will inevitably be confronted with such questions as whether
the subject is worth considering, whether the viewpoint of the requesting party
has already received a sufficient amount of broadcast time, or whether there
may not be other available groups of individuals who might be more appropriate
spokesmen for the particular point of view than the person making the
request...
That policy has been reiterated in
the Commission's 1964 Fairness Primer, 29 Fed. Reg. 10415, 10416, and its 1960
Programming Statement, 25 Fed. Reg. 7291 (1960). As we stated in In re
Democratic National Committee, 25 F.C.C. 2d 216 (1970):
In line with these general precepts
we have consistently held, in case after case, that with certain exceptions not
here involved, no individual has a right to express his particular views by
means of a broadcast facility.
18. It is clear that the
fairness doctrine is issue-oriented. The Supreme Court in Red Lion,
supra, has stressed the right of the public to be informed -- not the right of
the broadcaster or any individual or group to speak over broadcast
facilities. The Commission has consistently rejected the claims of groups
and individuals requesting a specific right of access to broadcast
facilities. In re Committee for Fair [*257] Broadcasting, et
al., 25 F.C.C. 2d 283 (1970), and The Committee of One Million, 33 F.C.C. 2d
545 (1971). Only in a few well-defined situations do particular individuals or
groups have the right to use a licensee's broadcast facility. n7 As indicated above, the fairness doctrine gives
licensees wide discretion in selecting what issues to broadcast and what
spokesmen to present. As we stated in The Committee of One Million at p.
548:
n7 See Section 315 of the
Communications Act of 1934, as amended, regarding "dual
opportunities"; the personal attack and political editorial section of the
Commission's Rules (Section 73.123); and Nicholas Zapple, 23 F.C.C. 2d 707 (1970).
The Commission's consistent policy,
now under review, has been that licensees must have adequate control to insure
that the public will be reasonably informed, and that the assertion of a right
of access is incompatible with the overriding right of the public to hear all
substantial sides of an issue, particularly in view of the licensee's duty to
present an opposing viewpoint without charge if that is necessary to insure
that a conflicting viewpoint is not denied a hearing. We read Red Lion Broadcasting
Co. v. F.C.C., 395 U.S. 367 (1969), as being consistent with our position and,
indeed, as rejecting a personal right of access.
In this regard, the Commission in
Matter of Complaint of the Senate of the Commonwealth of Puerto
Rico, F.C.C. 2d (decided
October 12, 1972) n8 and In the Matter of the Handling
of Public Issues Under the Fairness Doctrine and the Public Interest Standards
of the Communications Act, First Report in Docket 19260, FCC 72-534, June 22,
1972, F.C.C. 2d , has rejected all
arguments that the fairness doctrine be extended to require a licensee to
provide a comparable opportunity for opposing spokesmen to comment on the
issues raised in a broadcast appearance of any public official, including the
President. Thus, we reject petitioners' contention that the fairness
doctrine requires a right of Congressional access to the broadcast media.
n8 See paragraph 7 of the
Commission's decision.
19. In addition to the
fairness doctrine, petitioner rely in their complaint on the separation of
powers concept of Articles I and II of the Constitution, contending that the
networks have impaired the power of Congress to act as an equal and coordinate
branch of government by giving the President free access while denying members
of Congress the same opportunity. They state that the actions of the
networks have diminished the power of the legislative branch to such a degree
that it may be unable to "check and balance" the President.
Petitioners further assert that a policy that denies them access to the media
prevents them from fulfilling their constitutional duty to communicate with
their constituency -- a duty they infer from the requirement of Article I,
Section 5, Clause 3, that each House of Congress keep a permanent journal of its
proceedings.
20. However, the
constitutional concept of separation of powers does not, in our opinion,
justify the conclusion that the Constitution requires a right of special access
to broadcast media for members of Congress. The Constitution does not
command such communication, and the Constitutional prerogatives and powers of
Congress remain intact without it. Nor do we believe that the requirement
that a journal be kept justifies a conclusion that a constitutional mandate
exists for [*258] the allocation of nationwide radio or television
time to members of Congress. Although we agree that the broadcast media
are essential to proper communication with the public, we find nothing in the
pleadings before us to justify the novel interpretation of the Constitution
here advanced. We note in this regard that the Court of Appeals, in
rejecting the Democratic National Committee's request for a right of reply to
Presidential addresses, Democratic National Committee et al v. FCC, 460 F. 2d
891, 905 (D.C. Cir. 1972), stated
We are not unsympathetic to the
plight of the party out of the White House but sympathy cannot be allowed to
deter the public from the maximum information it can obtain. One of the primary
sources for public information concerning the national and its welfare is from
the Presidential broadcast. While political scientists and historians may
argue about the institution of the Presidency and the obligations and role of
the nation's chief executive officer it is clear that in this day and age it is
obligatory for the President to inform the public on his program and its
progress from time to time. By the very nature of his position the
President is a focal point of national life. The people of this country
look to him in his numerous roles for guidance, understanding, perspective and
information. No matter who the man living at 1600 Pennsylvania Avenue is
he will be subject to greater coverage in the press and on the media than any
other person in the free world. The President is obliged to keep the
American people informed and as this obligation exists for the good of the
nation this court can find no reason to abridge the right of the public to be
informed by creating an automatic right to respond in the opposition party.
21. Petitioners also argue
that the First Amendment guarantees them a limited free right of access to
network television to communicate their message in any mode or format they
choose. In Business Executives' Move for Vietnam Peace, 25 FCC 2d 242
(1970), the Commission was asked to decide whether a licensee's flat ban
against accepting paid commercial announcements which contained a discussion of
a controversial issue was against the public interest and violated the First
Amendment. The Commission held that stations were not obligated to sell
time to the complaining group (BEM) to present paid commercial announcements
against the United States policy in Vietnam; that a flat ban policy against
accepting paid commercial announcement did not per se violate the fairness
doctrine or any other Commission policy; that Red Lion Broadcasting Co., Inc.
v. F.C.C., supra, did not support BEM's contention that a flat ban violated the
First Amendment rights of BEM's spokesman; that the licensee had furnished
suitable access to the public on the ideas which BEM wished to express; and
that a licensee is not a common carrier and need not sell or give time to
everyone seeking it. At the same time that BEM reached the Commission,
the Democratic National Committee (DNC) sought a declaratory ruling to the
effect that a broadcaster may not, as a general policy, refuse to sell time to
responsible entities, such as DNC, for comment on public issues and for
solicitation of funds. The Commission in Democratic National Committee,
25 FCC 2d 216 (1970) held that licensees need not sell time to any individual
or group for comment on public issues, because no particular individual or
group has a right to express its particular views by means of a broadcast
facility.
22. The BEM and DNC decisions
were appealed and the Court of Appeals considered both cases together.
The Court did not consider [*259] the solicitation of funds aspect
of the DNC complaint. The Court reversed the Commission in BEM and DNC in
Business Executives' Move for Vietnam Peace v. F.C.C., 450 F. 2d 642 (D.C. Cir.
1971), and held that:
... a flat ban on paid public issue
announcements is in violation of the First Amendment, at least when other sorts
of paid announcements are accepted. We do not hold, however, that the
planned announcements of the petitioners or, for that matter, of any other
particular applicant for air time must necessarily be accepted by broadcast
licensees. Rather, we confine ourselves to invalidating the flat ban
alone, leaving it up to the licensees and the Commission to develop and
administer reasonable procedures and regulations determining which and how many
"editorial advertisements" will be put on the air.
23. However, on February 28,
1972, the Supreme Court granted the Commission certiorari and also stayed the
mandate of the Court of Appeals in BEM, 450 U.S. 953 (1972). In view of the
fact that the issue of a First Amendment right of access is now pending before
the Supreme Court, we will not re-examine that issue here.
24. Aside from their assertion
of a right of access, petitioner argue that the networks' policy of excluding
controversial issue programming produced by others is contrary to the public
interest. This is one of the many questions which will be considered by
the Commission in its current inquiry In the Handling of Public Issues Under
the Fairness Doctrine, etc., supra, and we believe that it may be more
appropriately considered in the context of that inquiry than on an ad hoc basis
in this case.
25. While the Commission
recognizes the potential of television to influence public opinion and the
advantages a President traditionally has in gaining access to the broadcast
media, to attempt to carve out a special right of access for either Congressmen
or the President would be contrary to the communications system established by
Congress and to all Commission precedent, and adoption of such a requirement
would go far toward making licensees act as common carriers, which is contrary
to congressional intent. See Section 3(h) of the Communications Act of
1934, as amended, 47 U.S.C. 153(h). See discussion, par. 16. Again,
one of the most fundamental principles of broadcast law is that ideas, rather
than any person or group, must be given access to the broadcast media. If
Congress, however, decides that the public interest requires it to establish a
specific right of access for Congressmen, it may of course, do so by
statute. In fact, a proposal for direct Congressional access to broadcast
facilities was initiated by Senator William J. Fulbright during the 91st
Congress, but expired in the Senate Subcommittee on Communications upon the
adjournment of the 91st Congress. Senator Fulbright's Senate Joint
Resolution 209 proposed that Section 315 of the Communications Act of 1934, 47
U.S.C. § 315 (1964) be amended by the addition of the following
subsection:
(d) Licensees shall provide a
reasonable amount of public service time to authorized representatives of the
Senate of the United States and the House of Representatives of the United
States, to present the views of the Senate and the House of Representatives on
issues of public importance. The public service time required to be
provided under this subsection shall be made available to each such authorized
representative at least, but not limited to, four times during each calendar
year.
[*260] 26.
Accordingly, and for the reasons set forth above, we find that no action by the
Commission is warranted at this time, and the complaint of the Black Caucus IS
DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
[Re:
Availability of Network Programming Time to Members of Congress] and [Re: Complaint
of the Black Caucus of the U.S. House of Representatives]
(SEE GRAPHIC IN ORIGINAL)
'The
President and I are I are happy to announce that the Justice Department has
broken the vicious network monopoly over TV programming. Stay tuned for
an hour of martial music followed by a stirring two-hour discussion by the
Secretary of Agriculture'
Newsweek, January 15, 1973
The questions presented by these
cases and rejected by the Commission majority today are of enormous consequence
to the continuance of our delicately balanced system of democratic
government. Since the majority does not seem to appreciate the
significance of its inaction in the face of these complaints, I feel
constrained to spell out at somewhat greater length than usual what I perceive to
be the policy considerations involved.
I
Although the two complaints before
us differ on a few minor points, they are sufficiently alike in major
considerations that I have chosen to discuss them both within the format of a
single statement.
The request of the Fourteen Members
of Congress was that the three networks would "sell, or otherwise make
available" to them a certain amount of time so that they might
"inform the public and seek the public's guidance with respect to
contemplated Congressional [*261] action concerning American
involvement in the Indochina War." The Fourteen also had as their object
the presentation of "a contrasting viewpoint to that of the
Administration" -- e.g., that of "a substantial number of members"
of Congress.
The members of the Black Caucus
sought three things: a) a ruling that the networks' flat ban on running
editorially uncontrolled documentary programming was, as applied to the members
of Congress, "arbitrary, irrational and unsupportive of the public
interest;" b) a directive to the networks to provide "an appropriate
number of prime time hours" each year, generally comparable in amount to
that given the Executive branch, for "direct, unfiltered political
speech" regarding the important issues before Congress; and c) one half
hour or one full hour for themselves, in order that they might respond to what
they considered Presidential misconceptions about the role government should
play in areas of domestic importance, based upon the President's 1971 prime
time "State of the Union" address.
Both complainants cited basic
Constitutional justifications for their requests, including the Separation of
Powers doctrine found in Articles I and II, as well as First Amendment
considerations. In addition, they cited the "public interest"
standard by which this Commission is required to regulate broadcast licensees.
The networks refused to honor the
requests of either complainant, n1
citing a variety of reasons for their refusal. NBC, for example, argued
that "the appropriation and use of privately owned broadcast
facilities" such as was allegedly "contemplated" here was simple
"too extraordinary" a remedy for the problems complainants outlined.
CBS rejected the requests because of what it called an "inappropriate"
abdication of licensee journalistic discretion, and argued that "nowhere
in the Constitution is the press required to maintain the balance of
power." NBC added that "if the framers had intended to require the
press to provide equal time, they would have said so in the Constitution."
n1 NBC apparently sought a
compromise with the Fourteen Members of Congress, but pulled back when the
instant complaint was begun.
In addition, all the network
respondents sought to claim that the operative factors were the issues sought
to be discussed, rather than the actors, and each stated categorically that
they had satisfied their general fairness doctrine requirements with regard to
those issues. Finally, each respondent noted in passing that, while the
President was the President of us all, the members of Congress involved in this
complaint represented but a few of the "535 discrete constituencies"
that go to make up Congress -- and were therefore not entitled to anything
approaching "equality" of consideration with the Executive Branch.
The majority dismisses both
complaints with little more than an echo of the network arguments. They
"defer" a decision on all First Amendment access aspects of the case
until after the Supreme Court decides BEM. Business Executives' Move for
Vietnam Peace v. F.C.C., 450 F. 2d 642 (D.C. Cir. 1971), cert. granted and
mandate stayed, 405 U.S. 953 (1972). The remainder of the issues are swept away
with a [*262] brief note that none of the Constitutional arguments
are in the least compelling, that neither the "fairness doctrine" nor
the "public interest" require any licensee to sell or give time to
"particular groups or individuals" for the discussion of
controversial issues, and that if Congress should desire any such right of
"access" as is sought here, it should pass a law to get it.
In find the majority's approach a
simplistic insult to the integrity of our system of government, that takes into
account neither the public interest standards under which this Commission is
supposed to operate nor the delicacy of a 200 year old balance of
Constitutional power currently under the "siege" of potential
Executive tyranny. Accordingly, I dissent.
II
It was recognized as far back as the
years of chaos that preceded the Radio Act of 1927 that mankind had stumbled
upon a revolutionary new technology in over-the-air broadcasting that would
irrevocably alter the pattern of his existence. Viable, instantaneous
mass communications can leave no institution in our country unchanged, and
least of all the institutions of our Federal government.
It is absurd to maintain, as most
broadcasters do, that the television medium should be no more regulated by the
Federal government than other media. The "regulation" of a
"privately-owned" broadcast media was the method chosen by that
government to allocate a finite number of broadcast airwaves for which there
was far greater demand than supply. The method chosen was not the
"sale" of those airwaves to the highest bidder, but their assignment,
on behalf of the public, to "trustees" who would operate their
frequencies "in the public interest, convenience or necessity," 47
USC § 309(h), in exchange for being allowed to make commercial profits
from their use.
From the beginning, the government's
decision not to operate the airwaves itself, but through such public trustees,
has resulted in a misunderstanding by the broadcasters regarding the extent to
which they "should" be regulated, on First Amendment grounds as well
as others. They have consistently denied any difference between
themselves and all other media, and when they have grudgingly admitted to some
required degree of governmental control, it has only been in the face of
adverse rulings fought by them to the highest administrative or judicial level
practicable.
Industry apologists have often noted
ruefully that there seem to be "two traditions of freedom of speech in
this country." See, e.g., Kalven, "Broadcasting, Public Policy and
the First Amendment," 10 Journal of Law & Economics 15 (1967):
"... [We] all take as commonplace a degree of government
surveillance for broadcasting which would by instant reflex ignite the fiercest
protest were it found in other areas of communication... [How] dismal the
position of broadcasting is today. It is cut off from partnership in a
great American tradition of freedom." Id., 16-17.
Yet it is not without considerable
reflection that we continue to do such "dishonor" to the traditional
First Amendment prerogatives of [*263] one branch of the
"press." Access to broadcast media is limited because it is a scarce
resource. Trite as that assumption can be made to sound by industry
spokesmen (see e.g., Testimony of John Summers, General Counsel of the National
Association of Broadcasters, before the Subcommittee for Government Regulation
of the Senate Select Committee on Small Business, February 7, 1973), it is at
the very basis of the regulation embodied in the Communication Act of 1934 and
has been cited approvingly in Court decisions ever since. Red Lion
Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969); National Broadcasting Co. v.
United States, 319 U.S. 190, at 226-227 (1944).
This scarcity of resources, plus the
method developed for allocating them to private groups or individuals, has
caused concern from the very beginning of governmental regulation that all
dimensions of the First Amendment be protected in over-the-air
broadcasting. Even before the passage of the Radio Act of 1927, Herbert
Hoover, then Secretary of Commerce, was saying:
Certainly in radio I believe in
freedom for the listener. He has much less option upon what he can
reject, for the other fellow is occupying his receiving set. The
listeners only option is to abandon his right to use his receiver.
Freedom cannot mean a license to every person or corporation who wishes to
broadcast his name or his wares, and thus monopolize the listener's set... the
greatest public interest must be the deciding factor.
Address, cited in Proceedings &
Recommendations For Regulation of Radio 56-57 (1926). That sentiment was
echoed by the Supreme Court the first time it attempted to construe the Act,
FCC v. Sanders Bros. Radio Station, 309 U.S. 470, at 475 (1940), and
later Courts merely served to underscore the fact that the
"differences" between the "new" technological media and the
older varieties must of necessity lead to different applications of First
Amendment rights. See, e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 503 (1952); Kovacs v. Cooper, 336 U.S. 77 (1949). Finally, the Court in
Red Lion drew the existing authority together as unequivocal justification for
the premise that:
[because] of the scarcity of radio frequencies, the
government is permitted to put restraints on licensees in favor of others whose
views should be expressed on this unique medium. But the people as a
whole retain their interest in free speech by radio and their collective right
to have the medium function consistently with the ends and purposes of the
First Amendment. It is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount. 395 U.S. 367, at 390.
[emphasis added]
Moreover, the Red Lion Court added
another dimension to the "scarcity" argument when it recognized that
"broadcast technology... supplants atomized, relatively informal communication
with mass media as a prime source of national cohesion and news..." 395
U.S. at 386, n. 15, thus emphasizing that the protections we require might be
grounded as much in the potential for abuse of this ability to reach vast
numbers of Americans as in the scarcity of its frequencies.
That such a potential for abuse
exists and must be recognized is at the basis of the public interest arguments
that cannot be so easily dismissed in the cases before as today. The
overwhelming importance and influence -- and consequent potential for harm as
well as good -- of a strictly limited number of broadcast media in a country
with more [*264] than 200 million people cannot be mere idle
conjecture, as some commentators would have us believe. See, e.g., Jaffe's
scornful treatment of the premise that "the potential of TV for good and
bad is enormous," in "The Editorial Responsibility of the
Broadcaster: Reflections on Fairness and Access," 85 Harvard Law Review
768 (1972). It cannot be denied that a very large percentage of the American
public currently gets all its news and all its public affairs information from
television and radio, and it is simply impossible to ignore the significance of
recent data which tells us that TV viewing is "running at an all-time high
of about 7 hours per American home per day." Television Bureau of
Advertising, citing statistics of the A. C. Nielson Corp., quoted in The
Washington Post, Parade Magazine, February 18, 1973, at 13.
Although we are constrained by the
Courts not to rely on the holding of the decision in BEM, there is nothing
faulty about the reasoning in Judge Wright's dictum that the broadcast media
"function as both our foremost forum for public speech and our most
important educator of an informed people. In a populous democracy, the
only means of truly mass communication must play an absolutely crucial role in
the processes of self-government and free expression, so central to the First
Amendment. That can be said of almost no other 'private' enterprise."
BEM, at 654.
III
Included in the license of every
broadcaster is the condition that the operation of his station be carried out
in the "public interest." 47 U.S.C. § 309(h). The Supreme
Court has more than once indicated that "[this] mandate to the FCC to
assure that broadcasters operate in the public interest is a broad one, a power
'not niggardly but expansive'... whose validity we have long upheld." Red
Lion, supra, at 380, citing National Broadcasting Co., supra, at 219. In Red
Lion, the court held the standard clearly "broad enough to encompass these
[fairness doctrine] regulations," Id., and the clear implication of these
cases and others is that the public interest requirements, at least
potentially, are considerably broader. See, e.g., Alexandra Mark v. F.C.C.,
F. 2d (1st Circuit C.A. Decision No. 72-1158, October
19, 1972), in which the Court said
* * * it cannot be seriously
contended, in light of the limited number of broadcast frequencies available,
that general guidelines reflecting programming priorities may not reasonably be
adopted. The Communications Act's requirement that stations operate in
the "public interest" furnishes the framework within which the First
Amendment would apply, such that activities or policies of a broadcaster, if
valid under the Act, would normally also meet the constitutional standard.
In Mark the Court of Appeals
considered an NBC "flat ban" against a certain type of programming in
light of whether such a "ban" might "illegally preclude
programming which falls within the 'public interest,'" Id. Because
the programming ban involved dealt with matters such as astrology and fortune
telling, the Court came to the conclusion that the "public interest"
standard was not violated. But the Court implied that over and above the
strict issue-oriented confines of [*265] the fairness doctrine, the
public interest must be a major consideration when we deal with the violation
of the constitutional rights of listeners and speakers.
There is no doubt in my mind but
that Congress has given this Commission the power and the mandate, via the
public interest standard, to cope with the urgent need for some form of
Congressional access. Section 303(b) of the Communications Act reads as
follows:
Sec. 303. Except as otherwise provided
in this Act, the Commission from time to time, as public convenience, interest
or necessity requires shall --
(b) Prescribe the nature of service
to be rendered by each class of licensed stations and each station within any
class;
The grant of power found in this
section in fact gives this Commission the right to act, not only in the very
narrow area of Congressional access, but in a wide range of other areas as
well. That the FCC has chosen time after time to refuse to regulate the
Communications industries should in no way be allowed to reflect on the
Congressional foresight apparent in the Act.
The fact is, despite the decision
made some 40 years ago to allocate such a huge chunk of spectrum to local
systems of broadcasting to serve the citizen in his community, this Commission
has never once promulgated a single rule or standard regarding the amount of
quality of informational programming that would satisfy the public
"convenience, interest or necessity," even though it would easily have
been possible to do so without infringing on any of the prerogatives of the
licensee with regard to programming he's originated himself. See, e.g.,
the studies made by Commissioner Cox and myself in An Oklahoma Case Study, 14
F.C.C. 2d 1 (1968); New York State License Renewals, 18 F.C.C. 2d 268 (1969);
and Renewal Standards: The District of Columbia, Maryland, Virginia and West
Virgina License Renewals, 21 F.C.C. 2d 35 (1969). This Commission was
established by Congress to develop the special expertise required to cope with
the evolving power and subtleties of communications, in areas social and
political as well as technological. See Justice Frankfurter's oft-quoted
statement that "the Act does not restrict the Commission merely to
supervision of the traffic. It puts upon the Commission the burden of
determining the composition of that traffic." National Broadcasting Co.,
supra, 215-216. Yet despite even the glowing judicial articulations of the
scope and effectiveness of Commission regulatory power, the sad fact remains
that we have never really gotten around to fleshing out the rules and standards
to which the American public, by virtue of § 303(b), are entitled.
This lack of a positive, aggressive
approach to the development of a sound body of "public interest"
regulation actually permeates all areas of Commission activity. I am
appalled to note, as I look back at nearly seven years as a member of this
body, that the various majorities with which I've served have never taken a
single tiny step forward when they could justify a great leap backward,
especially in response to some publicly-originated argument that the
"public interest" would be served by a given Commission action (or
inaction). I am tired of quibbling over definitions like "the public
interest is what interests the public" at this stage of my tenure.
American Telephone and Telegraph [*266] does not represent the
public interest. Neither do NBC, CBS or ABC, other multiple broadcast
owners, or even the rapidly growing CATV conglomerates. These
corporations are not set up to represent any constituency but their
stockholders, and indeed no rational person or governmental entity would expect
them to operate otherwise. It was this Commission which was established
to add the element of public interest regulation to the purely business
deliberations of our private communications enterprises. Via such public
representation it was plainly envisaged that many of the policies and
activities of the corporations -- planned solely for their maximum profit potential
-- would be vigorously examined, and perhaps held in check, by process of
governmental regulation. That was seen as the acceptable compromise
between complete government ownership on the one hand, and auctioning off the
frequencies to the highest bidder (or otherwise dispensing full-blown property
rights) on the other.
Why is it, then, that this
Commission decides 95% or more of its cases along lines totally compatible with
corporate, not public, plans and policies? When the Commission has seen fit
to approve of policies including as many as 33 minutes of commercials per hour,
n2 including up to $47,000 of outright
fraud, n3 including a planned zero minutes of
news or public affairs programming, n4
including zero effort on the part of a licensee to comply with even our most
specific political and editorial fairness rules, n5 including gross violations of our rules or policies against technical
interference, n6 multiple ownership, n7 regional concentration, n8 or employment discrimination, n9 what tattered shreds are left of the "public
convenience, interest or necessity?"
Whether possible, the citations for
these examples are to FCC decisions in which I have prepared a written dissent:
n2 Accomack-Northatmpton
Broadcasting Co., 8 F.C.C. 2d 357 (1967);
n3 WKKO, Inc., 24 F.C.C. 2d 889
(1970);
n4 Herman C. Hall, 11 F.C.C. 2d 344
(1968);
n5 Letter to Thomas M.
Slaten, F.C.C. 2d (November 8,
1972); Letter to People's Party (Dr. Benjamin Spock), 38 F.C.C. 2d 316 (1972);
n7 Assignment of WDSU-TV to Cosmos
Broadcasting Co. of Louisiana, F.C.C.
2d (November 29, 1972);
n8 Muskegon Heights Broadcasting
Co., F.C.C. 2d (January 23,
1973); Assignment of Station WNVL, 21 P & F Radio Reg. 2d 77 (1971);
n9 Pennsylvania-Delaware Renewals,
28 F.C.C. 2d 158 (1972).
Moreover, it is in those areas
involving the public right to receive information that this Commission has
fallen most perfectly into step with the industry it purports to
regulate. Areas like fairness, equal time, political access, or personal
attack see the majority fighting back every anti-industry attack with an
intensity normally reserved for partisan advocacy. The complaints
procedure is simply a remediless joke before this Commission, with never more
than a tiny handful of the many thousands of complaints filed every year given
even the remotest chance of success. And despite the fact that fairness
citations are supposed to be considered at the time a broadcaster's license
comes up for renewal, only the most blatant and consistent offenders have ever
been cited or placed into hearing for fairness or other programming violations.
I don't paint this bleak picture of
FCC abdication frivolously. I mean to demonstrate that when the entire
fabric of this Commission's regulation of broadcasting is considered, these
Congressional access [*267] decisions, despite an importance so
disproportionate to their narrow scope, should have been as predictable as they
are wrong. For I serve on a Commission whose standards are no standards,
whose administrative policies are the non-policies of avoidance and defence,
and whose members are quite simply frozen into public interest timidity by
their long years of see-no-evil, hear-no-evil, speak-no-evil decisionmaking.
IV
In regard to the question of general
access to the airwaves to rebut the President (or some other chief executive
officer) this Commission has done little but apply the strictures of the
fairness doctrine to the issues of each case. Thus, the licensee has been
allowed to retain his discretion to choose the spokesman and format of the
presentation of any or all opposing views. The Commission has found, for
example, that speeches and presentation of views on controversial issues by a
non-candidate President, or by a candidate President who was nevertheless
making "bona fide news," should be broadly covered by the fairness
doctrine despite the existence of "equal time" provisions in the
Communications Act. Letter to Blair Clark, 11 F.C.C. 2d 511 (1968), Republican
National Committee, 3 P & F Radio Reg. 647 (1964). See also California
Democratic State Central Committee, 20 P & F Radio Reg. 809 (1960), in
which the Commission said that "a speech alleged to be political should be
considered in the light of whether it involves a discussion of controversial
issues of public importance. If it does, then the station has an
obligation to afford reasonable opportunity for the presentation of opposing
views." The only real requirement placed on the broadcaster in any of
these cases has been that the "selection of a spokesman be reasonable in
terms of the points of view or issues to be discussed." Times-Mirror
Broadcasting Co., 24 P & F Radio Reg. 404, 406 (1962). Indeed, the
Commission has ruled so broadly and ambiguously on the issue of the right of
the general public to rebut the President (or other executive) that, in this
area as well, "reasonableness" standards appear to have been
virtually eliminated. See, e.g., Boalt Hall Students Association, 20
F.C.C. 2d 612 (1969), in which a group of law students at the University of
California/Berkeley were refused time by a number of stations to reply to
blasts by Governor Ronald Reagan aimed directly at student unrest on their
campus.
The problem of the right of the
"loyal opposition" to reply to a Presidential speech or appearance
has been handled by the majority with equal dispatch. See, e.g.,
Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283
(1970), in which the Commission found again that no specific opposing group had
any right to respond to Presidential addresses. I concurred in that case
because we also decided that five successive prime-time Presidential addresses
on the topic of the War did, in fact, require some sort of redress. But I
disagreed with the decision that various of the parties to that action did not
have additional rights where such a plethora of Administration presentations
were concerned, and especially the various groups [*268] of U.S.
senator/complainants, even though they were claiming their rights as Democrats
rather than as Members of Congress.
It is Committee for Fair
Broadcasting upon which the majority would rely in both cases today, and it is
not very difficult to demonstrate that their reliance is misplaced. The
bald statement that "neither the public interest nor any Congressional
enactment requires licensees to sell time to particular groups for
discussion" utterly fails to take into account the peculiar, limited set
of facts we confront in these complaints. For we deal today, not with yet
another "group" of concerned citizens or "loyal
opposition," but with two complaints on behalf of Congress, the
Legislative branch of our government, against unequal and highly discriminatory
treatment, by the broadcast media, of another, coequal branch.
It is absurd to attempt to shoehorn
the Congress into the same category as all other groups requesting access,
paid, free or otherwise. The rights of Congress are, and must be,
different from any other such group, including the political parties whose
members serve in its two chambers. The rights of Congress, as the branch
of government charged with the most direct responsibility to the American
electorate, are (or should be) designed most easily to effectuate that
responsibility. To that end, members of Congress have been granted
special privileges denied virtually every other member of the public They are
freed from the burden of prosecution for many crimes committed on the floor of
the House or Senate. They are given powers of subpoena to allow access to
any person or document deemed necessary to the legislative process. They
are even given power to cite individuals for contempt and to mete out penalties
to those who would thwart that process.
The Congress also has many
obligations to the American people, not the least of which is the obligation,
via communications, to contribute to the understanding and comprehension
necessary for an informed electorate. That obligation is specifically
manifested in the clause of the Constitution requiring the Congress to keep a
Journal, and also in the Speech and Debate clause. Either clause would
justify the Constitutional grant of a special right of Congressional access to
the airwaves, yet the former is merely dismissed by the majority as a
frivolity, and the latter is never mentioned at all. Nevertheless, the
important rights sought by complainants today transcend even the specifics of
these Constitutional provisions.
Even more compelling, for example,
is the argument based on the broad Constitutional need to maintain a healthy
separation of powers between the two coequal branches. It is that need
which most certainly triggers the "public interest" standard of
broadcast regulation when one branch so threatens to dominate the airwaves as
does the Executive today. Acting within a vacuum, to be sure, it might be
more difficult for us to justify an administratively-created right of
"special access" for Congress alone. But complainants are not
demanding any right for their branch of government that have not already been
granted, on numerous occasions, to the Executive. It is nothing
less [*269] than the equal protection of Congress, within the
parameters of the First Amendment interests of the public, that is being sought
before us today. If indications of current Executive media manipulation
are any guide (see § V below), we deny it at our peril.
The "no particular group"
reasoning, then, simply ignores the heart of these complaints: that, while this
access might not be necessary in and of itself to the orderly procedures of
government, the current situation, in which the Executive branch has demanded
and received an automatic right to uncontrolled access, is so serious as to
require immediate relief from the agency Congress originally set up as arbiter
of the uses of the broadcast media.
The majority claims it cannot decide
the First Amendment aspects of this case until such time as the Supreme Court
has acted in BEM, supra. But BEM is really only on point to the extent to
which the broadcaster here could justify his refusal to sell time to the
complainants in Fourteen Members of Congress, which request was not, in fact,
at the heart of that complaint. BEM concerned itself primarily with the
First Amendment rights of broadcasters vis a vis the allocation of time whose
content was already allocated to others -- i.e., a wide range of commercial
product advertisers. The Circuit Court found there were not nearly so
compelling First Amendment broadcaster interests over advertising time as there
might be vis a vis time over which the broadcaster is expected to exercise
professional judgment. "In normal programming time, closely
controlled and edited by broadcasters," the Court said, "the
constellation of Constitutional rights would be different." 450 F 2d, at
654.
It is ostensibly that "normal
programming time" not considered in BEM which is at the root of these
complaints, and which distinguishes them from the situation in BEM. The
"time" involved here, however, relinquishes all claim to
"normalcy" by the "constellation" of rights and protections
surrounding it. Where a "forum" is opened up within that
programming time for unfettered, unfiltered political speech by one branch of
our Government, but an equal measure denied to another, it remains, not for
this Commission to have to constitutionally justify its action, but for the
broadcasters to have to constitutionally justify their resulting denial of
"equal protection." n10
n10 I've discussed the relation
between the concepts of "forum" for First Amendment purposes, state
action and the right of access to the airwaves in great detail in other
contexts. See, e.g., my dissent to the original FCC decision in BEM, 25
F.C.C. 2d at 253-264. See also N. Johnson and T. Westen, "A Twentieth
Century Soapbox: The Right to Purchase Radio and Television Time," 57 Va.
L. Rev. 574 (1971).
As for the applicability of
"equal protection" principles, we need not apply the holding of the
Court in BEM to agree with its conclusion, in a different hypothetical context
(i.e., that of the discrimination among speakers based on the content of their
speech), that "since the First Amendment rights have been held to be
'fundamental rights' triggering the strict standard of equal protection
principles, Williams v. Rhodes, 393 U.S. 23, 30-31 (1968), it is doubly clear
that the burden of justifying any apparent discrimination is very great
indeed." 450 F. 2d, at 660.
Even the "flat ban" issue
in this case is different from the "ban" against political
advertising in BEM and can be decided by reference to the principles before us
today. That is, the networks' ban against programming they do not
editorially control must also be tempered by the equal protection First
Amendment obligations to Congress [*270] created by the carriage of
editorially uncontrolled programming of the Executive branch. n11
n11 Indeed, for the networks or
individual licensees to claim at this late date the right to maintain ironclad
initiative and editorial control over the entirety of their programming not
only denies the strictures of the Supreme Court that "supervised and
ordinated discussion" insufficiently satisfies the requirements of the
First Amendment, Tinker v. Des Moines Independent Community School District,
393 U.S. 503 (1969), but it also denies the realities of a broadcasting
situation in which all local stations, and even the networks themselves, rely
on outside "producers" to pre-package, not only commercials, but also
entertainment shows and even certain types of documentary. As two
examples of the latter, I would refer the network respondents to the Alistair
Cooke "America" series of documentaries (on NBC) and the Jacques Yves
Cousteau underwater documentaries (on ABC). This latter point raises, I
think, a somewhat different set of equal protection problems than the more
obvious carriage of editorially uncontrolled Administration productions.
Nor should it be of any importance
that there is a potential administrative problem involved with the grant of a
right of access to a Congress numbering 535 members. The presence or
absence of administrative niceties simply does not justify a continued breach
of constitutional obligation. The right sought by petitioners on behalf
of Congress is not a large one, either procedurally or in terms of encroachment
upon broadcaster prerogatives. At most, Congress is said to be entitled
to an amount of unfettered speech approximately equal to that afforded the
President, which, with a minimum of guidelines could be granted to Congress for
its own determination as to content and format. In the absence of any
other suggestions, however, the requests of the complainants in these two cases
are by no means unreasonable, and must be granted.
In the end, the narrowness of the
questions presented by this case, plus the "reasonableness" of the
actions of the licensees, must mandate a decision on behalf of
petitioners. The only question we need answer today is a severely limited
one, not whether we could constitutionally order all our licesees to adopt some
far-reaching scheme of Congressional access (and force it, as the majority
implies, on the State governments as well), not whether it is our duty not to
act in an area in which Congress has not specifically spoken, not whether we
are to force the broadcasters to relinquish all editorial control over their
programming, but rather simply whether the particular actions complained of in
this instance, given the nature of the parties involved, were reasonable
actions taken by the licensees in the public interest. Given the free
range of unfettered Executive prerogative, was it reasonable to refuse access
to members of Congress to discuss their conflicting views on the delicate
issues surrounding the Indochinese War? Was it reasonable to refuse the request
of members of the Congressional Black Caucus that they be allowed, in a format
of their own choosing, to refute the assessment of the Executive, in a format
of his own choosing, of the goals and priorities of our domestic policy? Given
the tremendous power of our broadcast media, I think no rational administrative
body could answer in the affirmative.
V
We are not dealing in this complaint
with the network- or licensee-controlled "access" via news coverage or
public affairs programming of Executive versus Legislative views and opinions,
but of a very specialized, self-initiated, self-controlled right of access open
to one but [*271] not the other. The networks, in their
response to these complaints, have chosen to defend their activities by
implying that the President, simply because he is one man elected nationally,
deserves the higher level of immediate access to the minds of his
"constituency" -- because he "represents all Americans and
administers rules and policies which generally have universal effect."
(page 16, Response of American Broadcasting Co., Inc. to "Complaint... of
Fourteen Members of Congress.") The fallacy is that the President, because
he "administers" the laws passed by the Congress, requires a greater
access to the public than Congress -- whose duty is "only" to
formulate those laws. n12 No account
is taken in this argument of the perhaps greater need of the American public to
know what its government is doing or thinking at the Congressional stage --
where, once informed, they can then communicate their thoughts and
predilections to that Body via their own elected representatives.
n12 Indeed, if Presidential
television communications had been limited to merely informing the public of
the nature of administrative rules, so that they might be more easily
administered, there would in all likelihood have been no need for these
complaints.
The networks challenge the
complainants as well because they purport only to be "members" of
Congress, and thus do not represent "Congress" as a whole, but rather
their own specialized constituencies. Yet even though the Fourteen
Members of Congress who are prosecuting one of these complaints hail from
States with a combined population exceeding 91 million (according to the 1970
Census), the complaints are being prosecuted more on behalf of Congress than on
behalf of any individual minority group. Even the Black Caucus views its
particular right to respond within a right belonging to Congress, not exclusive
of it.
That Congress requires this
specialized, limited right of access is as much a function of the nature of our
current system of broadcasting as it is of its great potential for one-sided
governmental abuse.
Despite the original decision to
allocate the airwaves on a local basis, so that each broadcaster could mold and
adapt himself to the needs and interests of the community he was to serve,
television broadcasting has developed into a virtual monopoly for just three
separate corporate entities who program many hours of the day on a nationwide
basis. Such a mode of operation is not entirely without its good points,
either, including the potential ability to apply vastly larger sums of money
than the local stations to achieve a higher quality of entertainment, news and
public affairs programming. In a few instances, indeed, that potential
has even been realized.
With the advent of the networks,
however, has also come the even greater potential for abuses of the
informational process. Not the least of those abuses has been the firm
establishment of a right of self-originated, self-initiated Presidential
access.
The right of the President to seize
the airwaves at will for "important announcements" to the American
people is at the very base of these two Congressional complaints, and a
profoundly dangerous base it is. For, like every other aspect of
communications "regulation" that has any teeth, it is a product of
some other, more powerful, force -- i.e., that of our nation's Chief Executive.
[*272] The media has had
a tremendous effect on the powers and prerogatives of the Executive Branch, an
effect that grows larger every year. This has been the case since the
days of Roosevelt's "fireside chats," as this quote from one of the
most respected early commentators should demonstrate:
A prepared address is the customary
way of conveying the President's considered thoughts to the people through the
newspapers. But a speech requires a listening audience -- not just
newspaper readers the next day -- and before the advent of radio, audiences did
not come easily... The radio has changed all this... A statesman at
last had what he had always needed -- a direct road from his mind to the minds
of millions, open for use almost the moment his thoughts were matured.
Chafee, Government and Mass Communications 726-727 (1947).
The current Chief Executive, having
surrounded himself with advisors heavily steeped in the mechanics and
significance of the broadcast media, has been almost uniquely aware of the
potential of mass communications and able to take advantage of it to its
fullest potential. I took the occasion some time ago to document this
President's use of the media in a speech, in which I summarized as follows:
What emerges is the overwhelming
impression of an Administration whose fixed focus is on the little glass
screen, beginning with the media campaign of 1968. President Nixon
surrounds himself with advisers whose principal experience is in advertising,
public relations, and broadcasting; his appointments to the Federal
Communications Commission and related agencies are designed to foster
Administration control and industry orientation. The full panoply of
governmental power -- including the Vice President, the Justice Department, the
Federal Trade Commission, the FCC, the Pentagon, and other agencies -- is
available to use on the broadcasting industry in an unprecedented attack on a
government-licensed medium. An office of "Director of
Communications" is established in the White House to survey the media and
coordinate the attack. Broadcasters are kept off-balance by the one-two
punch of barely camouflaged intimidation and acts of censorship, together with
the promise of an economic pay-off for those who cooperate. President
Nixon goes to the airwaves with Administration propaganda and does not hesitate
to seek to exploit commercial television as a channel for Administration
ideology. The FCC is involved in restricting the access of
nongovernmental groups to TV, and legislation designed to place limitations on
campaign financing is vetoed for what appear to be partisan reasons.
Finally, television as a medium is abused and exploited as never before in the
1970 congressional election campaign. "Government by Television: A
Case Study, Perspectives and Proposals," remarks prepared by Commissioner
Nicholas Johnson for delivery to the International Association of Political
Consultants 3rd Annual World Conference, The Royal Garden Hotel, London,
December 14, 1970. Reprinted in Earth Magazine, Vol. 2, No. 2, March,
1971.
Even so, it is perhaps less than
candid to blame any single President for the ever-increasing imbalance in the
power of the branches of our government to effectively utilize
communications. All the forces at work, it seems, would tend to favor any
Chief Executive who has the political foresight to make good use of that
imbalance. Perhaps too, as Senator Mike Mansfield has said, it is
Congress itself that is mostly to blame for "abdicating its power to the
Presidency in the nuclear age," Washington Post, January 21, 1973, p. C-7.
The sad paradox of the opposition of
the broadcasters themselves, who would rise up in unanimous outrage against any
resolution of these cases in favor of Congress, is that they simply don't
realize the precariousness of their position under the current "status
quo" of [*273] unequal protection of Congress. Quite
frankly, this Commission has taken great pains to render itself powerless to
act in the face of any further growth in Presidential intimidation of the broadcast
press. Even those who defend the broadcast industry against what they
would call the double standard of "two traditions" of First Amendment
freedoms admit that "one embarrassment in attacking seriously the topic of
free speech in broadcasting is that the admitted benignity of the FCC has made
it difficult to mount appropriate indignation. Whatever the posture of
the theory, in practice things are not at all bad and broadcasting does not
live under a shadow of government tyranny." Kalven, "Broadcasting,
Public Policy and the First Amendment," 10 J. Law & Economics 15, 19
(1967). But while the potential "tyranny" of the FCC may be a
joke, the retention of the current communications imbalance in favor of the
Executive branch of government may well be paving the road to a tyranny that is
not to be taken so lightly.
VI
The ultimate irony of these
decisions lies not in the broader implications of rights of access found in the
lower Court's decision in BEM but in their implications for the very heart of our
governmental processes, the delicate separation of powers that for so long as
sustained our method of government and made it a viable democratic
alternative. There is an elliptical thought process involved in the
considerations of the majority in these two cases: "We would defend the
rights of our licensees to refuse to give time to the President," it says,
"therefore we must defend the refusal of a right of access to
Congress."
We operate in the eighth floor
meeting room of the FCC building, located some seven blocks from the White
House and some two miles from the Capitol -- in other words in close proximity
to the realities of government. Why then does reality have no meaning to
the deliberations of the majority of the Commissioners? Would any station
(or network) in its right mind actually refuse a Presidential nationwide
broadcast? Might there be extra-Federal-Communications-Commission
sanctions against such a network or station? Yet this Commission operates
within its own unique set of policies, and what that works out to most of the
time is little more than a vacuum.
Of course, it was probably foolish
to expect this Commission to begin to change its approach to regulation with a
set of cases as important as this one. The staggering policy implications,
the potential importance of this issue to the political future of our system of
government, the realities of a situation for which there is no precedent in our
Rules or decisions, all these serve to screw even more tightly closed the
regulating eyes of the majority.
But I, for one, am worried.
I am worried that the Courts will
soon tire under the weight of having to provide this Commission with every
major aspect of its regulatory policy. Who is to blame them if they throw
up their hands in distress sometime soon, knowing we are wrong, but knowing
also that beyond a certain point it is simply impossible for them to go on
being a surrogate FCC?
[*274] I am worried that
the fabric of governmental power is being rapidly gathered, yard by yard, into
a heavily guarded four block "combat zone" around the White House,
vastly aided by a lumbering hippo of a Congress and reluctant patsies like the
FCC. Communications -- and especially the artful use of the television
seizure -- are so important to this process of reeling in the power and
influence that I tremble at the paralysis I often see on the faces of my
colleagues, both within this Commission and elsewhere in the limbo of
administrative government. It is a malignant paralysis, whether
voluntary, in order to "get ahead" within the current governmental
climate in this city, or involuntary, out of fear of being cast aside.
The arguments made by the majority
in this case are a product of that paralysis. The failure of this Commission
to acknowledge a right of access to members of Congress (majority and minority
alike), either to rebut the President or to present their own proposals, on the
grounds that "no individual or group" is entitled to access,
indicates that, to the majority, there is no difference between Congress and
any other institution in this country. It succeeds, therefore, in setting
apart the President as the only legitimate source of federal government, and
giving him the sole right to demand and receive instantaneous access for
uncontrolled, unfettered pronouncements.
Presently, then, the members of
Congress, both collectively and as individuals, must rely upon the news
judgment of the broadcasters if they are to receive coverage of their
activities, debates, suggestions and opinions. They can, of course,
encourage or manipulate such coverage in various ways, a practice in which some
have no doubt become artists. Yet the fact remains that the dimension
they lack -- that of self-initiated programming, used either to inform or
convince -- is perhaps the most vital element in the governmental
communications process.
We are not seeking here to impose
upon the licensee's news judgment, or to infringe upon his constitutionally
protected right to freedom from censorship of the content of his
programming. Nor do we purport to set up massive blocks of time for
Congress (or its minority contingents). One hour per month of prime time,
spread out among the three networks on a rotating basis -- so that each network
would be required to find only one hour every three months in its rightly
schedule -- could well satisfy everyone who would wish for a greater
Congressional right to inform the American public. The permutations and
alternatives are, of course, endless. Surely no one can claim that such a
Congressional right would "open the door" to the ultimate demise of
the independence and profitability of the broadcast media.
In these cases we are dealing with
the whole galaxy of First Amendment protections of the broadcaster, the viewer
and the speaker alike -- all of which are directed toward one major goal: the
"uninhibited, robust, wide-open debate" the Supreme Court found at
the base of the First Amendment in New York Times v. Sullivan, 376 US 254, 270
(1964). See, e.g., the D.C. Court of Appeals' application of that principle to
the administration of the airwaves in National Association of Theatre Owners v.
F.C.C., 420 F. 2d 194, 207 (D.C. Cir. 1969). But if "uninhibited"
debates are to take place in the regulated broadcast [*275] media,
it is simply impossible for one party (the President) to have unlimited access
to that media, while his opponent (the Congress) must have all his
presentations controlled and edited by a third party (the broadcasters).
Yet if no right of balanced access for unfettered, uncontrolled speech is to be
found even at the highest levels of our federal government, the concept that
the "public" is owner of the airwaves, and that the "public
interest" should dictate their use, can have no meaning at all vis a vis
the Constitutional rights of the speaker and the listener.
It makes a mockery of our
Constitutional scheme if we believe that the First Amendment is satisfied by
the double standard inherent in the treatment accorded our Executive and
Legislative branches of government by the networks and licensees in these
cases. The Commission majority is wrong in finding Congress to be no
different from any other "particular group or individual," and it is
wrong when it decides the actions of the networks in these cases were
"reasonable" or consistent with the "public interest."
I dissent.
DISSENTING STATEMENT OF COMMISSIONER BENJAMIN L. HOOKS
The three American television
networks, ABC, CBS and NBC, have refused to honor a request, presented to them
by the Black Caucus of the United States House of Representatives (hereinafter,
"Black Caucus") for time in which to present their views, and indeed
the views of their unique constituency, the Black American populace, on one of
the most urgent issues besetting this country -- the race issue. This
refusal has, unfortunately, reaffirmed one thought that permeates the minds of
many Black folks, i.e., that the system is diametrically opposed to anything
which can be categorized as Black-oriented.
Through their programming, the
networks -- and hence the individual stations -- daily inundate the public with
their selective choice of spokesmen to expostulate on the multiple aspects of
"the racial issue."
The Black Caucus request serves to
highlight perfectly the principal point I have been reiterating in speeches and
discussions ever since accepting appointment as Commissioner; namely, that
while the individual licensees generally do a creditable and commendable job of
programming, and the networks provide us with frequently superb coverage of
events in inimitable fashion, the public is mostly deprived of the opportunity
to hear and see Blacks (and Blacks' viewpoints) at variance with
media-reinforced stereotypes of Black citizens.
It is presumptuous on the part of
white media executives and news editors -- particularly in view of the fact
that the establishment broadcast hierarchy is virtually devoid of Blacks in any
meaningful roles in editorial and programming decisions -- to believe that they
can better convey to the public black views on controversial issues than can
the Black Caucus. Illustrative of this unseemly hauteur are the responses
of ABC and CBS to the Black Caucus. The president of ABC declaimed:
We believe that our professional
news organization is more objective and has the responsibility and competence
to devise the programming to accomplish this [*276] end, including
the selection of appropriate format and spokesmen. (Emphasis supplied)
CBS
similarly rejected the notion that the Black Caucus might more proficiently
disseminate Black political viewpoints than it by asserting:
It has been our policy for many
years -- that broadcasts dealing with current controversial issues will be
produced under the direction and control of CBS News...
Inasmuch as
the Black Caucus complaint is also grounded in the Fairness Doctrine -- which
seeks antagonistic viewpoints -- ABC's claim of objectivity is clearly
inapposite. Objectivity is nearly antithetical to the purpose of
affording a Fairness Doctrine (discussed infra) response and certainly
irrelevant to the thrust of the Black Caucus request.
Therefore, the out-of-hand refusal
on the part of the networks to provide a platform -- platform the Black Caucus
could not duplicate short of purchasing broadcast facilities themselves -- by
which the American public could receive invaluable information, as I have said
before, cannot but reinforce in the minds of some Black citizens that there
still exists an insidious effort to squash the Black upward movement. In
my mind, the unwarranted refusal to the Black Caucus raises suspicions about
the bona fides of the broadcasters in either defusing race problems (riots on
aircraft carriers make good, exciting copy) or in offering the public the best
possible information. That is my, shall we say, emotional dissent.
From a legal standpoint the
networks' refusal to the Black Caucus is a clear violation of virtually every
public interest standard embodied in the Communications Act and the
Commission's various program policies. We proceed from the bedrock
premise that broadcasters are licensed to serve the public interest n1 as trustees of the communal radio spectrum. n2 Pursuant to their statutory obligations, and putting
aside Fairness Doctrine n3 questions momentarily, a licensee
must heed the following Commission admonition:
n1 47 U.S.C. Sections 307, 309.
n2 Red Lion Broadcasting Co. v.
F.C.C., 395 U.S. 367 (1969).
n3 See fn. 9, infra.
If, as we believe to be the case, the
public interest is best served in a democracy through the ability of the people
to hear expositions of the various positions taken by responsible groups and
individuals on particular topics and to choose between them; it is evident that
broadcast licensees have an affirmative duty generally to encourage and
implement the broadcast of all sides of controversial public issues over their
facilities, over and beyond their obligation to make available on demand
opportunities for expression of opposing views. (Emphasis
supplied). Report on Editorializing by Broadcast Licensees, 13 F.C.C.
1246, 1251 (1949).
The 1949 Editorializing Report
language hereinabove cited dispels any doubt that the broadcaster has an
independent obligation to furnish the public with useful and stimulating
programs so as to encourage "uninhibited wide-open" n4 debate on public issues. In terms of serving
the public interest, that tenet is the keystone.
n4 Red Lion Broadcasting Co. v.
F.C.C., supra, at 390 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 290
(1964).
[*277] In the face of
such premonishment, how then can a broadcaster refuse to transmit to the public
-- increasingly dependent on television for information -- the important
positions of the premier conclave of Black political thought on racial
issues? Licensees, as public trustees or good journalists or whatever,
have a compelling duty to elicit such views when available. Here, though
available on a silver platter to a public with a First Amendment right to be informed
of all views on controversial issues of public importance, n5 the networks have arbitrarily withheld such
information from the American public on the fallacious (and supercilious)
ground that they must edit and control what the public hears about controversial
issues.
n5 Id. Moreover, in connection with
this Constitutional right, it is impossible to square the following Red Lion
language with the network positions set forth in their responses.
... That the right of free
speech of a broadcasters... does not embrace a right to snuff out the free
speech of others... [A] licensee has no constitutional right... to monopolize a
radio frequency to the exclusion of his fellow citizens... It is the
right of the viewers and listeners, not the right of the broadcasters, which is
paramount... Red Lion, supra, fn. 3, at 387, 389, 390.
That licensees cannot serve the
public interest while at the same time excluding the citizenry from exposure to
the unadulterated views of the President and other important government
officials is implicit in the 1949 Editorializing Report, supra, wherein we
said:
* * *
This affirmative responsibility on
the part of broadcast licensees to provide a reasonable amount of time for the
presentation over their facilities of programs devoted to the discussion and
consideration of public issues has been affirmed by this Commission in a long
series of decisions.
* * *
And the Commission has made clear
that in such presentation of news and comments, the public interest requires
that the licensee must operate on a basis of overall fairness, making his
facilities available for the expression of the contrasting views of all
responsible elements in the community on the various issues which arise.
* * *
These concepts, of course, do
restrict the licensee's freedom to utilize his station in whatever manner he
chooses but they do so in order to make possible the maintenance of radio as a
medium of freedom of speech for the public. ( Id. at 1247, 1249 and
1250). n6
n6 See, Democratic National
Committee, F.C.C. 2d , 22 R.R. 2d 727
(1971); aff'd, sub. nom., Democratic National Committee et al al. v.
F.C.C., U.S. App. D.C.
, 460 F. 2d 891, 905 (D.C. Cir. 1972), wherein the
Court of Appeals said:
One of the primary sources of public
information concerning the nation and its welfare is from the Presidential
broadcast. While political scientists and historians may argue about the
institution of the Presidency and the obligations and role of the nation's
chief executive officer, it is clear that in this day and age it is obligatory
for the President to inform the public on his program and its progress from
time to time. By the very nature of his position, the President is a
focal point of national life. The people of this country look to him in
his numerous roles for guidance, understanding, perspective and
information. No matter who the man living at 1600 Pennsylvania Avenue is,
he will be subject to greater coverage in the press and on the media than any
other person in the free world. The President is obliged to keep the
American people informed and as this obligation exists for the good of the
nation...
But see, Columbia Broadcasting Co.
v. F.C.C., 147 U.S. App. D.C. 175, 177, 454 F. 2d 1018, 1020 (D.C. Cir. 1971)
wherein the Court of Appeals noted:
... [In] the distillation of
an informed public opinion, such [Presidential] appearances play a very basic
role. But if the words and views of the President become a monolithic
force, if they constitute not just the most powerful voice in the land but the
only voice then the delicate mechanism through which an enlightened public
opinion is distilled, far from being strengthened, is thrown dangerously off
balance. Public opinion becomes not informed and enlightened, but instructed
and dominated.
[*278] The Black Caucus
occupies a distinct role for which there is no comparable partisan or
non-partisan amalgam and should receive coverage. Because of their
individual and widely-diverse backgrounds, they have welded together a composite
view, if indeed such view collectively exists, of the needs and aspirations of
a multiplicity of constituencies within the Black national community. It
has fused, consolidated and condensed positions which bespeak of all balck
interests. The Black public -- and perhaps more importantly, the white
public -- should be permitted to see the Black Caucus, in popular parlance,
"do its thing" in a way that no pale imitation from the
best-intentioned broadcaster can approximate. To categorically, and
self-righteously, deny a paltry few prime time hours out of the hundreds
annually available for the discussion of one of the nation's critical problems
from the representatives of the group most concerned -- the Black electorate is
more than prima facie inconsistent with the public interest.
Turning to the Fairness Doctrine n7 aspect of the Black Caucus complaint, let me say
that I fully recognize that in light of its limited nature, the spectrum cannot
be made available to all who wish to use it. National Broadcasting Co. v.
F.C.C., 319 U.S. 190 (1943). I also understand that the Fairness Doctrine is
issue oriented and cannot require an identical treatment of all differing views
because, as Judge Wilkey stated in Green v. F.C.C., 144 U.S. App. D.C. 353,
358, 447 F. 2d 323, 328 (1971) "this would place an unreasonable burden on
the licensee" and that "licensees may exercise their judgment as to
what material is presented and by whom." n8 Moreover, in the exercise of this judgment, we have succinctly held:
n7 The Commission's Fairness
Doctrine, skeletally framed, requires a broadcaster to afford a reasonable
opportunity to qualified spokesmen to present contrasting viewpoints on
controversial issues of public importance. See, 47 U.S.C. Section
315(a). See also, Obligations of Broadcast Licensees Under the Fairness
Doctrine, F.C.C. 2d , 35 F.R. 7820
(1970); In the Matter of the Handling of Public Issues under the Fairness
Doctrine and the Public Interest Standards of the Communications Act, 33 F.C.C.
2d 800 (1972). Applicability of Fairness in the Handling of Controversial
Issues of Public Importance, 40 F.C.C. 2d 598, 29 F.R. 10415 (1964).
n8 Judge Wilkey means, of course,
that such judgment must devolve from the good faith exercise of reasonable
standards by the licensee. See Applicability of Fairness Doctrine, supra,
fn. 9, at par. 10; also see Neckritz v. F.C.C., 446 F. 2d 501 (9th Cir. 1971).
The Commission does not seek to
establish a rigid formula for compliance with the fairness doctrine. The
mechanics of achieving fairness will necessarily vary with the circumstances
and it is within the discretion of each licensee, acting in good faith, to
choose an appropriate method of implementing the policy to aid and encourage
expression of contrasting viewpoints. Letter to Mid-Florida Television
Corp., 40 F.C.C. 620, 621 (1964).
The issues in the instant Fairness
complaint are thus sharply drawn: (1) In response to the Chief Executive's unedited,
carefully prepared views on controversial racial issues of public importance,
did the networks act unreasonably in denying a response from the Black cadre of
the Legislative Branch? (2) Can the networks be said to have acted
reasonably and in good faith in denying time for contrasting views to the most
appropriate spokesmen? n9
n9 The 1949 Editorializing Report
(supra, fn. 5, at 1251, 1252) stated: In determining whether to honor specific
requests for time, the station will inevitably be confronted with such
questions as whether the subject is worth considering, whether the viewpoints
of the requesting party has already received a sufficient amount of broadcast
time, or whether there may not be other available groups of individuals who
might be more appropriate spokesmen for the particular point of view than the
person making the request.
There is no way the networks can, at
once, comply with those criteria and respond in the negative of the Black
Caucus request.
[*279] As the court
stated in Columbia Broadcasting Co. v. F.C.C., supra, fn. 7, supra, 147 U.S.
App. D.C. at 191, 454 F. 2d at 1034:
The public must be equipped to make
hard choices between competing political philosophies. This end is best
served where there is robust debate among the people most directly involved --
the spokesmen themselves -- not where the operator of a federally licensed
facility must circumscribe the debate as a condition precedent to airing it at
all.
For the networks to maintain that
some other scattergun approach can fairly match the concerted impact of the
State of the Union address with the near effect of the compacted vehicle
offered by the Black Caucus is a patently unreasonable violation of the clear
meaning of the Fairness Doctrine. The principle that individual
proponents, on isolated broadcasts, cannot match the clout of a concerted
rebuttal has been acknowledged often by the Commission. n10 But the combined views of the Black populace, as
personified in the membership of Black Caucus, is a far cry from the individual
views on isolated issues presented to the public by persons they (broadcasters)
have caused to be anointed and crowned "Black leaders." I can no more
accept the fact that the media-crowned Black leaders speak for the total Black
populace than I can accept as fact that a Ku Klux Klansman, college radical, or
establishment-type figure can speak individually for the entire white
population. Just as political broadcasts on partisan issues by one
political party are appropriate for response by the (others) n11 the Black Caucus, as the major elected voice of the
Black community to the Legislative Branch of the government -- is the obvious
entity to proffer positions on important racial issues and their proper
resolution in contradistinction to those views and solutions held by the
Executive. The public must hear both; that is the crux of the Fairness
Doctrine.
n10 See, e.g., Letter to Nicholas
Zapple, 23 F.C.C. 2d 707 (1970). That decision enunciates the so-called
"political party corollary" to the equal time provisions of Section
315 of the Communications Act of 1934, as amended, 47 U.S.C. Section 315. The
corollary holds, in general, "That when one political party is given time
on the media to use at its discretion a request by an opposing party for time
cannot be refused." Democratic National Committee et al. v. F.C.C., supra,
fn. 8, 460 F. 2d at 898. Also see, Committee for Fair Broadcasting of
Controversial Issues, 25 F.C.C. 2d 283 (1970) and Republican National
Committee, 25 F.C.C. 2d 739 (1970); reversed on other grounds, sub nom.,
Columbia Broadcasting Co. v. F.C.C. supra, fn. 8.
n11 Ibid.
The networks cannot claim that the
Black Caucus is demanding time for a cacophony of differing voices which the networks,
given temporal limitations, could not accommodate. The Black Caucus has
made it simple for the networks. It has consolidated the myriad positions
of the nation's Black citizens into a neat package. The appropriateness
of the face-off is manifest and the networks, whatever discretionary latitude
is accorded them in establishing standards, cannot claim that it can offer
better format or spokesmen for the ideological exchange.
[*280] By steadfastly
clinging to an unyielding discretion in programming choices -- even where the
Fairness Doctrine limits this discretion -- and misapplying their
understandable zeal to resist governmental efforts to encroach on programming
choices, the networks have, in the balance, come down on the wrong side of the Fairness
Doctrine and the public interest. n12
n12 In view of the facts that I find
that the networks acted improperly on both straight public interest and
Fairness Doctrine bases, it is unnecessary to opine on the issue of a
Congressional access right to the media. Inasmuch as this issue is
presently sub judice before the Supreme Court which has granted certiorari (405
U.S. 953) in the D.C. Court of Appeals ruling in, sub. nom., Business
Executives Move for Peace v. F.C.C., Case No. 24492 (D.C. Cir. Aug. 3, 1971)
and will review a finding (specifically, Democratic National Committee, 25
F.C.C. 2d (1970)) in which I did not participate, it would appear fruitless to
here develop my personal views on this matter for the first time.