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
BY THE COMMISSION: COMMISSIONERS JOHNSON AND HOOKS DISSENTING AND ISSUING STATEMENTS; COMMISSIONER H. REX LEE CONCURRING IN THE RESULT.
[*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."
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.