In Re Complaint by CITIZENS COMMUNICATIONS CENTER, WASHINGTON, D.C.
Concerning Discriminatory Programming of Station WMAL-TV
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 705
RELEASE-NUMBER: FCC 70-594
JUNE 4, 1970
[*705] ALBERT H. KRAMER, Esquire, Citizens Communications Center, 1816 Jefferson Place NW., Washington, D.C.
DEAR MR. KRAMER: This refers to the complaint dated March 13, 1970, which you filed against the licensee of Station WMAL-TV on behalf of the Back Alley Theatre, Inc.; the response dated April 10, filed by the licensee, The Evening Star Broadcasting Company, and to your comment on the response dated May 7.
The complaint and the accompanying affidavit executed by Mrs. Naomi Eftis, Producing Director of the Back Alley Theatre, state that a hostess on the WMAL-TV program, "The Now Woman," invited members of the theater group to videotape an interview about the theater's forthcoming production, "The Dutchman," and to perform a five or six-minute excerpt from the drama for use on the program; that when Mrs. Eftis, Miss Yahya, the director of the production, and two members of the cast appeared at the licensee's studios on March 3, 1970, a preliminary camera run-through was begun; that "The Dutchman" is about an encounter between a black man and a white woman on a New York subway, and the scene selected by the theater group for the telecast "requires the young man to put his arms around the girl, to hold her hand, and to kiss her lightly several times"; that the actors had not spoken more than a few lines when Mr. Joseph Browne, director of the program, began shaking his head and stating that the scene could not be telecast; that when asked why, Mr. Browne responded to the effect that "the language was bad," and during the subsequent discussion stated that "You can do this in the theater but not on TV"; "The scene's too static"; "There's too much kissing and we have young children watching this show... I have a responsibility to the public for the morality of this show."
Mrs. Eftis states that "It was distinctly our impression that the reason the show was 'unsuitable' was because it was a black man kissing a white woman in a very tender and believable way." The complaint asserts that Mr. Browne's reasons were inconsistent and that his actual reason was based on racial discrimination; that since the program was to be shown in midmorning, only pre-school children would [*706] have been watching, and that, "In any event, the number of children likely to be watching the 'Now Woman' is no more or no less than the number likely to be watching the equally suggestive soap operas or early prime time programs." Complainant, citing the U.S. Supreme Court decision in the Red Lion case, states that "A licensee cannot censor a speaker because of the content of his speech. Nor can he censor artistic expression save in the case where it crosses the line of decency and becomes profane or obscene."
Complainant states further that in this case the licensee failed to follow its own programming policies regarding presentation of "suggestive" scenes, that by refusing to show the scene "WMAL has demonstrated its lack of concern for a problem intimately touching the lives of many people within its signal area... has attempted to walk away from a problem that touches inter-racial relations at the most fundamental level," and "has demonstrated an insensitivity to the problems of its local community that calls into question its qualifications as a licensee." Complainant requests that the Commission not renew the license of WMAL-TV until "it has satisfied itself that the licensee is in fact in touch with the needs of the community."
In its response, the licensee states that complainant's charges are based on "half-truths and conjecture and are wholly lacking in substance"; that the program hostess who invited the theater group to appear on the program was not familiar with the play, and the portion in question was chosen by the theater group itself; that licensee's objections to the scene "stemmed solely from its sensuous nature"; that Mr. Browne rejected the scene only after hearing and viewing a longer portion than represented by complainant, which included "sensuous kisses and caresses, culminating in the placing of Lula's hand rather high on Clay's thigh"; that the licensee later invited Mrs. Eftis to review the scene to determine whether changes could be made to make it appropriate for broadcasting; that she responded that copyright laws would prevent any change; and that in response to a further invitation to select a different scene, Mrs. Eftis advised that the presence of profanity throughout the remainder of the play would prevent such substitution. Licensee states further that members of the Back Alley Theatre group previously had been guests on a WMAL children's program when the group was specializing in children's drama, and that WMAL's recent invitation to the group "stemmed from the fact that WMAL-TV had become aware that the Back Alley Theatre is now producing adult drama of the type... described as representative of the black revolutionary movement." Licensee asserts, finally that it desires "to achieve a resumption of the cooperative relationship that has existed between our organizations."
The Commission has carefully considered the complaint and the licensee's response, which involve fundamental issues regarding a licensee's responsibility to serve the public interest and the Commission's regulatory authority in programming matters, and we have concluded that it would not be appropriate for the Commission to take action in this case.
A licensee is not a common carrier (Section 3(h) of the Communications Act), and may exercise his judgment as to the particular program [*707] matter he will present. The Commission itself is prohibited by statute from exercising any power of censorship over broadcast matter, and, with the exception of appearances by legally qualified candidates for public office and other matter specifically covered by statute (obscenity, indecency, lottery advertisements, etc.) does not direct its licensees in their selection of particular program material. The licensee does not have to present programming material which he believes either will not serve the needs or interests of his listeners or will not do so as well as other programming material. Report and Statement of Policy Re: Programming Inquiry, 20 Pike & Fischer, Radio Regulations 1902, 25 F.R. 7291. He is thus constantly called upon to make choices between types of programming, and then, within each type, to choose the format and content. If the licensee were deemed to be a common carrier, having to present any matter brought to him which was not obscene, etc., the result would be not only chaotic but a wholly different broadcasting system which Congress has not chosen to adopt.
Although the licensee has great discretion, that discretion is, of course, limited by the necessity to act under policies consistent with the public interest. Thus, a serious public interest question would be presented if in its over-all programming a licensee ignored the needs of a substantial segment of his community or, for example, arbitrarily refused to present members of an ethnic group, or their views. Refusal to present members of such a group, either as such or in integrated situations with members of other groups, would constitute discrimination in programming. It is not enough, however, simply to state that a speaker has been "censored" because a licensee has edited or rejected a particular piece of program matter. Such exercise of the licensee's judgment in programming occurs thousands of times a year, as to which claims could be made that the licensee was serving some improper purpose of policy. Absent substantial extrinsic evidence of motives inconsistent with the public interest, the Commission should not and will not intervene in this continuing program practice.
We have conflicting statements from the complainant and the licensee in this case. Thus, the matter turns on the assertions of the complainant as to what the real motives of WMAL-TV were, as against the assertions of the licensee as to its motives. The policy position which we have set out in rulings such as Hunger in America, 20 FCC 2d 143 (1969) is equally pertinent here. It is simply not appropriate for the Commission to designate the matter for an evidentiary hearing upon a credibility (demeanor) finding, whether to credit the statement of motive of the licensee. Absent extrinsic evidence going to a policy inconsistent with the public interest (e.g., testimony of a station employee concerning his instructions from management), the Commission will not intervene in the programming process of a licensee, and specifically will not seek to establish the "true" motives by inference or credibility findings in this sensitive area. Commission intervention would be inconsistent with the policies and spirit of the First Amendment and thus with the public interest. Finally, we note that the critical issue here is whether the licensee has a policy of not presenting material involving interpersonal relationships between the races, and that on that issue, the licensee not only denies such a policy, [*708] but offered "to review the dialogue and presentation of the scene in question, and suggest changes which might resolve our controversy without affecting the artistic content of the scene" (Letter of March 27). In view of this offer and the foregoing considerations, we believe that there is no basis or need for proceeding further on this particular matter.
However, while making clear our intent, absent extrinsic evidence, not to intervene in this sensitive area of licensee decision, we wish to make equally clear our intent to determine whether licensees are adequately ascertaining and serving the needs of their communities. We note that a petition to deny renewal of the license for WMAL-TV is now pending, and that the licensee's alleged failure adequately to ascertain and to serve the needs of its community is one of the grounds for the petition. Thus, the licensee's over-all record in this area will be considered fully when we take action on the petition.
Commissioners Cox and Johnson dissenting and issuing the attached statements.
By direction of the Commission.
BEN F. WAPLE, Secretary.
DISSENTBY: COX; JOHNSON
DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX
I dissent. I agree that this complaint involves us in the very sensitive area of a licensee's program judgment. However, the majority agree that the complaint was one we should have investigated and that if WMAL-TV in fact had a policy barring the presentation of "material involving interpersonal relationships between the races," n1 it would violate the public interest standard. My concern is that our investigation has been inadequate either to resolve the matter or to demonstrate that the dispute cannot be resolved except upon the basis of a judgment as to the credibility of conflicting witnesses. On the one hand we have two affidavits from Mrs. Naomi Eftis, the Producing Director of the Back Alley Theatre, who was present when the dramatic excerpt in question was previewed and rejected by Joe Browne of WMAL's staff. On the other hand, we have no affidavits from anyone connected with the licensee who was present when the incident in question took place, but only a letter to the Commission signed by Richard S. Stakes, WMAL's general manager, to which is attached a copy of an earlier letter to Mrs. Eftis signed by Andrew M. Ockershausen, the station's assistant general manager. No statement, sworn or otherwise, has been submitted from Mr. Browne or Miss Claire Kleess, the hostess of the program in question, who were the only representatives of the station present at the time of the incident complained of.
n1 I interpret this circumlocution as meaning that a licensee cannot have a policy against the broadcast of program material in which blacks and whites are shown kissing each other.
I agree with the majority's analysis of the facts of this case as set forth in the first five paragraphs of their letter. I also agree with a good deal of their discussion of the policy to be applied to the case -- particularly its enunciation of what I think is a new concept, that of [*709] "discrimination in programming." for which some remedial action is apparently considered appropriate. But I disagree with the application of our Hunger in America decision -- in which I joined fully -- to the situation involved here. We are not here dealing with the area of news, which I think is more sensitive than entertainment or general informational programming of the kind involved in this dispute. But in any event, I think there is "substantial extrinsic evidence of motives inconsistent with the public interest" in this record. Certainly there is as much as you will ever get short of an admission by a licensee of improper conduct, written policies which are improper or their face, or the example used by the majority: "testimony of a station employee concerning his instructions from management." Such testimony adverse to his employer would quite probably be disputed by management, but in that case the majority are apparently willing to get into matters of demeanor and credibility. While testimony of an employee approaches a declaration against interest, there may be considerations offsetting the assumed reliability of such testimony, to wit, bias against his employer, etc. But I do not think we can consign all testimony by non-station personnel to limbo simply because it might be controverted, thus requiring the exercise of sound judgment to arrive at the truth. When responsible people dealing with a licensee tender evidence which, if true, would establish that the licensee follows a policy contrary to the public interest, I do not think we can shrug it off simply because there is dispute as to the facts. Their testimony is extrinsic evidence which we must consider. If it is internally inconsistent, inherently improbable, or vague as to essential details we may decide not to act on it. But the testimony of complainants here seems coherent, reasonable, and persuasive. It is not contradicted by anyone with testamentary knowledge of the incident. There is a well established principle of law that if a witness under the control of a party is not presented, it may be assumed that his testimony would have been adverse to that party. Perhaps Mr. Browne and Miss Kleess would confirm Mrs. Eftis' version of the events and the conversation which took place. If so, we would have a situation quite different from the one the majority chooses to address.
I certainly do not suggest that there is anything here which would go to the licensed status of WMAL-TV. As a consequence, I do not believe that inquiry into this dispute -- even the taking of oral testimony before an examiner -- would constitute improper intervention into the station's programming. The majority say that refusal to present blacks in integrated situations with members of other races "would constitute discrimination in programming." They further say that the critical issue is whether the licensee "has a policy of not presenting material involving interpersonal relationships between the races," from which I deduce that if WMAL-TV had such a policy it would be improper and the Commission could require corrective action. But how is the Commission ever to resolve this issue if the licensee's denial of complaints is to bar us from further inquiry? I think the majority have stated a valid standard of licensee conduct, but have cut themselves off from any procedures to enforce it.
[*710] Certainly, if testimony as to a dispute of this kind were in reasonable balance, I would be inclined to resolve the doubt in favor of a licensee -- but after some kind of more searching inquiry than we have made here. I would like to have analyzed the statements of the parties in detail, but there is no time for that. I think there are some inconsistencies in the station's account of the matter. Apparently it believes that a reading of the sixteen lines from the play quoted in Mr. Stakes' letter, together with the fact that it "was accompanied by sensuous kisses and caresses, culminating in the placing of Lula's hand rather high on Clay's thigh" makes the unsuitability of this scene for television "self-evident." I cannot accept this without more. Rather, it seems to me probable that Mr. Browne rejected the excerpt from the play either because the action involving a black man kissing a white girl offended him or because he thought it would offend his management or some members of the audience. I think the majority would regard that as improper, but they refuse to find out if this is the case. I think we should have pursued the matter further despite its admitted difficulty.
A hostess for the WMAL-TV program, "The Now Woman," invited the cast of the Back Alley Theatre to perform a short segment from their current play, "The Dutchman," by LeRoi Jones. During the "rum through" of the scene for the television cameras the Director of the program, Mr. Joseph Brown, refused to tape the performance, allegedly because it contained a scene in which a white woman first placed her head on a black man's shoulder, and then kissed him lightly several times. Complainant Back Alley Theatre, through its counsel, Mr. Albert H. Kramer of the Citizens Communications Center, alleges these facts and then argues that WMAL-TV is guilty of racial discrimination of a sort inconsistent with the "public interest" obligations of the station, and improper licensee censorship, citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The Commission majority rejects these arguments and dismisses the complaint. I dissent.
I. RACIAL DISCRIMINATION
Of "The Dutchman," the play in question, Mr. Alan M. Kriegsman has written in the Washington Post, March 25, 1970, p. C-1:
The play may be seven years old, but it still burns with a fierce heat and sheds its pitiless light, exposing a sickness of soul many would prefer not to see... [What] probably disturbs [people]... the most about "Dutchman" is how accurate a metaphor it really is for the nightmare alley of black self-awareness and white conscience... Indeed, it is its ruthless candor that has gotten it into trouble.
WMAL-TV's response reflects perhaps, precisely the reaction predicted by Mr. Kriegsman. WMAL-TV argues that the scene was rejected "solely" because of its "sensuous nature" and because "the unsuitability for television presentation of the Back Alley Theatre's unaltered performance of 'The Dutchman' is self-evident." It maintains that Mr. Brown's reaction was unrelated to the presence of a black man and a white woman in a flirtatious setting.
[*711] Analytically there are three questions involved in determining whether WMAL-TV's elimination of the scene in question exhibited a degree of racial discrimination inconsistent with its obligations to the public as a licensee: (1) Assuming as true all the facts alleged by complainant, would a violation of the public interest and Commission policy exist? (2) Assuming such a potential violation, are the supportive facts in such dispute that an evidentiary hearing is required to resolve them? (3) Assuming a potential violation and facts sufficiently in dispute to warrant a hearing, are there First Amendment or other considerations which would bar an investigatory proceeding into the factual issues at hand? As I understand the majority's opinion, its answer to all three questions is "Yes." May disagreement consists only with their response to question (3).
The first question is whether a possible violation of the public interest would exist if the allegations brought by complainant were true. Although the Commission states that licensees are not common carriers, n1 that the Commission is prohibited by Section 326 of the Communications Act from exercising "any power of censorship over broadcast matter," n2 and that the licensee has discretion to choose the "format and content" of his programming, n3 it also recognizes that:
n1 But see dissenting opinion of Commissioner Johnson, pp. 4-6, in Letter to Cong. Richard L. Ottinger, [Judy Collins incident], FCC Public Notice 47876, April 20, 1970.
n2 But see Eastern Educational Radio [WUHY-FM], 18 P & F Radio Reg. 2d 860 (1970).
n3 But see, Jack Straw Memorial Foundation [KRAB-FM], 21 F.C.C. 2d 833 (1970).
... a serious public interest question would be presented if in its over-all programming a licensee ignored the needs of a substantial segment of this community or, for example, arbitrarily refused to present members of an ethnic group, or their views. Refusal to present members of such a group, either as such or in integrated situations with members of other groups, would constitute discrimination in programming... [The] critical issue here is whether the licensee has a policy of not presenting material involving interpersonal relationships between the races...
This position is unfortunately ambiguous. It is unclear whether the majority believes a violation of the public interest would exist if one clear example of "discrimination in programming" were found ["for example," if a licensee "arbitrarily refused to present members of an ethnic group... in integrated situations with members of other groups" -- as alleged here]; or if a policy of discrimination in programming were found, presumably consisting of a written memorandum or a series of separate events ["the critical issue here is whether the licensee has a policy of not presenting material involving interpersonal relationships between the races" -- emphasis added.]
According to my understanding of the Commissioners' intent in this area, however, based on discussions with them and members of the staff, the majority intended to rule that even one clearly provable example of racial discrimination, such as the one here alleged, could be sufficient to make out a case of "discrimination in programming" against the licensee. n4 I concur in that interpretation. Two years ago the Kerner Commission wrote:
n4 This is evident, at least by implication, from the majority's discussion (on p. 4) of the motives of WMAL-TV -- all of which would be irrelevant if the Commission's policy was not to investigate individual instances of alleged discrimination. Of course, the question of the appropriate penalty for a single violation of the sort here alleged remains an open one.
[*712] [The] communications media, ironically, have failed to communicate... They have not communicated to the majority of their audience -- which is white -- a sense of the degradation, misery, and hopelessness of living in the ghetto... They have not shown understanding or appreciation of -- and thus have not communicated -- a sense of Negro culture, thought, or history... The absence of Negro faces and activities from the media has an effect on white audiences as well as black. If what the white American reads in his newspapers or sees on television conditions his expectation of what is ordinary and normal in the larger society, he will neither understand nor accept the black American. By failing to portray the Negro as a matter of routine and in the context of the total society, the news media have, we believe, contributed to the black-white schism in this country.
Report of the Nat'l. Advisory Comm. on Civil Disorders 383 (Bantam ed. 1968). LeRoi Jones' play, "The Dutchman," has been widely acknowledged as a major contribution toward an understanding of black-white racial problems in this country. It won the "Ohie" Award for the best American play of the 1963-64 season. An "arbitrary" refusal to broadcast a portion of LeRoi Jones' play, based on the ground that the presence of a black man and a white woman kissing in one scene was "offensive" either to the licensee or (in the licensee's judgment) to his viewers, would, I believe, constitute a clear example of discrimination. Cf. Loving v. Virginia, 388 U.S. 1 (1967); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Nondiscrimination Employment Practices of Broadcast Licensees, 18 F.C.C. 2d 240 (1969), at 214 n. 2 and accompanying text.
It is important to note, however, that racial discrimination would be evidenced in WMAL-TV's action not per se, because the portion of the play was rejected, but because it was rejected for an improper reason. In Reitman v. Mulkey, 387 U.S. 369 (1967), for example, the Supreme Court declared unconstitutional an attempt by California's voters to repeal a statute prohibiting racial discrimination in public housing. The Court acknowledged that the State (embodied in its voters) certainly had the power to return to "a neutral position" by repealing the fair housing laws, but held that it could not do so with an improper motive or "intent" -- the intent to condone or encourage racial discrimination. Reitman v. Mulkey, supra at 376. Similarly, if a licensee engages in any conduct of a discriminatory nature -- whether it be racially biased hiring or firing of personnel, improperly gerrymandering of community needs surveys, or program censorship based solely on racial grounds n5 -- then this reflects motives and conduct that are inconsistent with its obligations as a public trustee for its beneficiary-audience. In this sense, what the licensee actually does -- whether it be a programming decision or some other conduct -- is important only for what it betrays; behavior motivated by racial biases which are inconsistent with the terms of a broadcast license. Nothing would prevent a licensee from rejecting a program on any number of grounds -- e.g., legal "obscenity," poor technical standards, insufficient artistic quality, untimely subject matter, or perhaps even whim [*713] (simply because the licensee didn't like the program), n6 just as nothing prevents a defense counsel from peremptorily rejecting potential jury members in a criminal trial. But if the licensee rejects a program or a scene solely because it offends his racial prejudices, and his motives for doing so are clearly revealed, he will have violated the public interest standards written into his license and must be held to account for it. n7
n5 This is not to say, of course, that the appropriate "remedy" for censorship based on solely racial grounds is enforced broadcast of the material in question -- as is the remedy for violations of the Fairness, Equal Time and Personal Attack doctrines. Whether or not a licensee would be required to broadcast the censored program might turn, in part, on such other factors as those developed in Part II below.
n6 Again, this statement may be qualified by considerations of "access," discussed in Part II below. Under certain circumstances, a licensee may not be able to reject programming even on "whim."
n7 Of course, even if a licensee rejects a program on several distinct grounds, only one of which is "racial," the licensee's qualifications to operate his facility fully in the public interest would still be drawn into serious question. The presence of more than one motive would merely make the problems of proof more complicated and difficult.
The second question before us -- if a potential legal violation exists -- is whether the facts are sufficiently disputed to warrant a hearing, or whether the legal issue can be resolved on the pleadings. On this the majority is clear: "We have conflicting statements from the complainant and the licensee in this case." Normally, therefore, a hearing would be in order to determine the facts of the case.
The third question involved here, however, is more difficult. The Commission has acknowledged that a potential legal violation exists; that the facts which would support or deny such a violation are in conflict; and that the essential problem is ascertaining the "real motives" of WMAL-TV in rejecting the scene in question. The majority concludes, however, citing Hunger in America, 20 F.C.C. 2d 143 (1969), that this Commission will not initiate an investigation to resolve the factual questions, absent "extrinsic evidence" of motives inconsistent with the public interest. An example of such "extrinsic evidence" given by the majority is the "testimony of a station employee concerning his instructions from management."
I have several problems with this conclusion. First, it is not clear to me that the policies of Hunger in America apply here. Hunger in America involved the problem of alleged "news staging" -- the intentional slanting, distortion or manipulation of the news. But in cases of news staging, there are always three questions we must ask: first, what "actually" happened; second, did the portrayal involved deviate substantially from what actually happened; and third, why (in terms of newsmen's motives) did the substantial deviation occur? In the present case, however, the first two questions do not exist; there is no objective "truth" or "reality" (other than the motives of the persons involved) into which we are inquiring. There is no "news" here at all. We remarked in Hunger in America, 20 F.C.C. 2d 143, 151 (1969), that "in this democracy, no Government agency can authenticate the news, or should try to do so." I agree. But I do not see how an inquiry into a pattern of events that might provide us with clear evidence of racial discrimination involves an attempt to "authenticate the news."
Further, the dangers of investigations into "news staging" are that the omnipresent threat of government surveillance may deter the licensee from broadcasting controversial material. In the instant case, however, the deterrent already exists and is self-imposed. Rather than creating a risk of greater licensee censorship, an inquiry might encourage even less censorship.
[*714] Finally, it seems to me that we may already have sufficient "extrinsic" evidence to justify a further investigation. To be sure, we do not have a memorandum from an "insider" relating a station policy against portraying scenes such as the one involved here; nor do we have direct testimony from a member of the licensee's staff. But we do have an affidavit from at least one witness of the incident describing a series of events which, if corroborated, would raise a strong presumption of discrimination. n8
n8 I find it peculiar, to say the least, that we have not even required an affidavit from Mr. Joseph Brown or other decision-making WMAL-TV personnel, and I concur in Commissioner Cox's discussion of this point.
According to an affidavit by Mrs. Eftis, producing director of the Back Alley Theatre, the actors began to enact the following dialogue:
CLAY. The party!
LULA. I know it'll be something good. You can come in with me, looking casual an significant. I'll be strange, haughty, and silent, and walk with long slow strides.
According to the affidavit, the actors had just reached this point in the dialogue when the director of "The Now Woman," Mr. Brown, "began shaking his head and telling Miss Yahya [the director of 'Dutchman'] that the scene could not be taped." If this is true, then it is difficult to imagine why the scene could not be taped -- unless it involved something not in the script (such as the presence of a black man and a white woman). The licensee, of course, has disputed the account in this affidavit, and it may well be correct. But in light of this dispute, I would think it incumbent upon this Commission at least to inquire further. Such a preliminary inquiry should be carefully limited to focus, not upon Mr. Brown's intent in eliminating the segment in question, but on whether he did in fact evidence his disapproval immediately after Clay spoke the word, "Right."
Accordingly, I would have preferred a limited investigation into the incident in question, with the specific purpose of ascertaining only the sequence of events -- to the best recollection of available witnesses. This might easily be done without an examination of Mr. Brown or his motives. If the evidence overwhelmingly indicated that Mr. Brown evidenced his intention to cancel the segment at a very early point in the dialogue, and that there is no convincing or even plausible reason for this conduct (other than a discriminatory reaction toward the presence of a black man and a white woman together in one scene), then I would simply inquire whether the licensee had adequate policies, sufficiently enforced, to prevent the recurrence of such an incident. Absent some egregious conduct on the part of the licnesee's management, I would certainly feel the no sanction or reprimand would be proper. Cf. Hunger in America, 20 F.C.C. 2d 143, 150, at par. 20 (1969). Isolated incidents of misconduct, particularly where management could not reasonably have forestalled such conduct, should incur no sanction from this Commission. See Pacifica Foundation, 36 F.C.C. 2d 147, 150 (1964).
[*715] II. ACCESS
Complainants also argue that WMAL-TV's elimination of "Dutchman" from its morning program, "The Now Woman," was improper licensee censorship and prohibited by Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Implicit in this argument is the contention that Back Alley Theatre had a "right" of some sort, recognized by law, to exhibit a scene from "Dutchman" to the Washington metropolitan area audience over WMAL-TV's television facilities. This "right" might be described as one of "access" to the broadcast facilities of a licensee who, according to established precedent, serves as a "trustee" of the public airwaves for the benefit of the public as the trust's "beneficiaries."
The Supreme Court has recently provided some significant support for this position. In its Red Lion decision, the Court observed:
[Those] who are licensed stand no better than those to whom licenses are refused... [The] licensee has no constitutional right... to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
... It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount... It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here.
... There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all...
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389, 390, 392 (1969) (emphasis added). The Court also added a very clear reminder to Congress and the FCC that they are charged with creating a true First Amendment marketplace of ideas. Stating that the "right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences... may not constitutionally be abridged either by Congress or the FCC..;" the Court intimated that it would view very seriously "a discriminatory refusal [by the Commission] to require the licensee to broadcast certain views which have been denied access to the airwaves...." Red Lion Broadcasting Co., supra at 396 (emphasis added).
These statements supply the guideposts which should direct the Commission and the courts toward a developing new "common law of access" to the mass media. This law of access must begin to define and limit those situations in which the licensee can exercise his discretion to reject ideas and experiences offered for broadcast by citizens within its service area. In a most preliminary way, the Supreme Court has indicated in Red Lion the sort of lines that must be drawn. Thus, the licensee cannot monopolize his frequency to the complete "exclusion" of other citizens (395 U.S. at 389); he does not have the power of "unlimited" censorship (395 U.S. at 392). On the contrary, the licensee may have the obligation to present those views and voices which "otherwise" would be "barred" from the airwaves (395 U.S. at 389); [*716] the public must receive "suitable" access to various ideas and experiences (395 U.S. at 390). Should this not occur, the Constitution may compel the FCC to require the licensee to broadcast those views "which have been denied access to the airwaves" (395 U.S. at 396).
Clearly, a licensee must retain some power to reject programming -- if only when it fails to meet certain quality standards, is duplicative of other programming, or violates federal law (lotteries, obscenity, etc.). But just as clearly the licensee, as a trustee, does not possess unlimited power to monopolize the use of that valuable property which he holds in trust for the public. The guidelines for access, therefore, must ensure that the broadcast channels of the twentieth century are as open to the public as were the soap boxes, public parks, and town hall meetings of the last century. We must begin to define, on a case-by-case basis, the scope of what the Supreme Court has described as "suitable access" for ideas and expression. The Commission and the courts must come to view the broadcast licensee, not just as a private profit-maximizing entrepreneur, but as a "gatekeeper" who is bound by the guidelines of policy, law and the public interest when he decides which ideas and expression may be communicated by one citizen or group of citizens to another.
The FCC and the courts have already begun to develop variants of the "access" doctrine. The Fairness, Personal Attack and Equal Time doctrines all curtail the licensee's discretion to reject programming. So does the requirement that the licensee ascertain community needs and interests and devote "some significant proportion of [its]... programming" to them. City of Camden, 18 F.C.C. 2d 412, 421 (1969). Newer aspects of "access" are being explored. One such issue, now before the Commission, is whether licensees have the unrestrained right to reject pre-paid politically-oriented advertising solely because the licensee disagrees with the views it contains. See, e.g., Letter of Complaint, filed with the FCC on behalf of Business Executives' Move for Vietnam Peace (Jan. 22, 1970). Another related problem is the ability of licensees to censor out of a prepared program, during its broadcast, the remarks of an invited guest. See Letter to Cong. Richard L. Ottinger [Judy Collins incident], FCC Public Notice No. 47876, April 20, 1970 (dissenting opinion of Commissioner Johnson). And the courts have already fashioned several doctrines which prevent the private owner of forums used to communicate ideas from censoring individuals who have a right to be there. See, e.g., Food Employees Local 590 v. Logal Valley Plaza, Inc., 391 U.S. 308 (1968); Marsh v. Alabama, 326 U.S. 501 (1946); University Committee v. Gunn, 289 F. Supp. 469 (W.D. Tex. 1969); Wolin v. Port of New York Authority, 268 F. Supp. 855 (S.D.N.Y. 1967), aff'd, 392 F. 2d 83 (2d Cir.), cert. denied, 393 U.S. 940 (1968); In re Lane, 457 P. 2d 561, 79 Cal. Rptr. 729 (1969); In re Hoffman, 67 Cal. 2d 845, 434 P. 2d 353, 64 Cal. Rptr. 97 (1967).
The essential question posed by the Back Alley Theatre's complaint, therefore, is whether its "right of access" to the television media has been "triggered," see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 391 (1969), by the nexus of facts involved in the incident for unlimited private censorship operating in a medium not open to all."
[*717] The case before us is analogous. The Back Alley Theatre was asked to appear on "The Now Woman"; it was not asked, nor did if offer, to purchase air time; the time for the taping and air broadcast was scheduled; the format was pre-arranged; the Theatre was asked to perform part of a specified play; the topic under consideration was important and timely; the play's author was a man who many have described as a "spokesman for the views contained on that play; the theater group took the time and effort to appear at the appointed time and place; and taping was begun (although not completed) as arranged.
Two elements in the Judy Collins incident, are missing in the incident before us: the taping was not completed; and the segment was not broadcast. On the other hand, ABC argued in the Judy Collins incident that one justification for their censorship was the possibility of prejudicing a fair trial. That objection is not present here.
Again I feel, as in the Judy Collins incident, that we cannot squeeze all cases of licensee censorship into the confines of the Fairness Doctrine, and that this Commission should begin to develop doctrines of "access" on a case-by-case basis. But in part because the parties have not briefed this issue, I will defer my own detailed examination of these problems until a later time.