381 F.2d 908 (D.C. Cir. 1967), 19938, Red Lion Broadcasting Co. v. F.C.C.

Docket Nº:19938.
Citation:381 F.2d 908
Party Name:RED LION BROADCASTING CO., Inc., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Case Date:June 13, 1967
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 908

381 F.2d 908 (D.C. Cir. 1967)

RED LION BROADCASTING CO., Inc., et al., Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

No. 19938.

United States Court of Appeals, District of Columbia Circuit.

June 13, 1967

Argued Sept. 26, 1966.

Page 909

Mr. Robert E. Manuel, Washington, D.C., with whom Mr. Thomas B. Sweeney, Washington, D.C., was on the brief, for petitioners.

Mr. Henry Geller, Gen. Counsel, F.C.C., with whom Asst. Atty. Gen. Turner, Messrs. John H. Conlin, Associate Gen. Counsel, Robert D. Hadl, Counsel, F.C.C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the brief, for respondents. Mrs. Lenore G. Ehrig, Counsel, F.C.C., also entered an appearance for respondent Federal Communications Commission.

Before WILBUR K. MILLER, Senior Circuit Judge, and FAHY [*] and TAMM, Circuit Judges.

The action of the Federal Communications Commission is affirmed. Circuit Judge Tamm files an opinion. Circuit Judge Fahy files a separate opinion. Senior Circuit Judge Miller notes his non-participation in the consideration and decision of the case on the merits.

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TAMM, Circuit Judge:

I. Earlier Proceedings in This Court.

Argument of this case, after a full briefing schedule, was conducted before this panel of the court on September 26, 1966. With Judge Fahy dissenting, the panel concluded that the 'declaratory rulings contained in the Commission's letters are not orders from which an appeal may be taken or judicial review sought, ' and dismissed petitioner' action. Thereafter, the United States and the Federal Communications Commission petitioned for an en banc rehearing of the case, and a majority of the court voted in favor of the granting of this petition to rehear. A majority of the court, then en banc, voted to vacate the opinions and judgment filed by the panel on November 22, 1966, and directed the assigned division to consider the petitioners' action upon the merits. 1

II. The Issues Presented.

A prehearing stipulation approved by the court in a prehearing order dated March 9, 1965, defined the issues agreed to by the parties to be:

1. Whether section 315 of the Communications Act of 1934, as amended in 1959, 2 adopted the Commission's 'Fairness Doctrine' as set forth in the Commission's 1949 Report, Editorializing by Broadcast Licensees, 3 and if so, whether section 315 constitutes an unconstitutional delegation of Congress' legislative function.

2. Whether the Fairness Doctrine, as set forth above, is unconstitutionally vague, indefinite, uncertain and lacks the precision required when legislation which affects the basic freedoms guaranteed by the Bill of Rights is adopted.

3. Whether section 315, as stated in (1) above, violates the ninth and tenth amendments to the Constitution.

4. Whether the Fairness Doctrine violates the first and fifth amendments to the Constitution and, particularly, whether under the facts of this case the requirement that a broadcaster may not insist upon financial payment by a party responding to a personal attack violates the first and fifth amendments to the Constitution.

III. Identity of Petitioners and Factual Background Creating the Present Controversy.

Petitioners are Red Lion Broadcasting Co., Inc., the licensee of Radio Station WGCB-AM-FM, Red Lion, Pennsylvania, and the Reverend John M. Norris, the principal stockholder and president of Red Lion Broadcasting Co., Inc. In November 1964, petitioners broadcast a fifteen minute program by a Reverend Billy James Hargis as part of a program series entitled, The Christian Crusade. The program included a discussion of the 1964 presidential election and a book concerning the Republican campaign entitled, Goldwater Extremist on the Right, written by Mr. Fred J. Cook. During the course of the program and as part of the broadcast, Reverend Hargis made the following statements concerning Mr. Cook.

'Now who is Cook? Cook was fired from the New York World-Telegram after he made a false charge publicly on television against an unnamed official of the New York City government. New York publishers and News-week magazine for December 7, 1959, showed that Fred Cook and his pal Eugene Gleason had made up the whole story and this confession was made to the District Attorney, Frank Hogan. After losing his job, Cook went

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to work for the left-wing publication, The Nation * * *. Now among other things, Fred Cook wrote, for The Nation was an article absolving Alger Hiss of any wrong doing * * * there was a 208 page attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook was on the Central Intelligence agency * * * now this is the man who wrote the book to smear and destroy Barry Goldwater called Barry Goldwater Extremist Of The Right.'

Thereafter, Fred J. Cook wrote a letter to Radio Station WGCB inquiring whether Reverend Hargis had, in fact, made the above remarks. Cook requested time to reply to the Hargis remarks if they had, in fact, been made and specifically requested that the reply time be furnished at the expense of WGCB. In response, WGCB furnished Cook with its rate card so that he could arrange for the time he might wish to purchase and furnished him copies of letters which it had written in answer to comparable requests by the Democratic National Committee and the American Civil Liberties Union. A further exchange of letters occurred, after which, Cook filed a complaint with the Federal Communications Commission. In his complaint, Cook charged that Radio Station WGCB had broadcast a personal attack against him without notifying him of the attack or sending him a transcript of the program. Cook also charged WGCB was insisting upon payment from him for any reply broadcast. The Commission brought the complaint to the attention of Radio Station WGCB and requested an answer within twenty days. As a result of this letter, additional letters were exchanged between the radio station and the Commission. To permit a full understanding of the resulting controversy, the pertinent letters are quoted below in their entirety as they were reproduced in the Joint Appendix filed by the parties in this case.

'AM WGCB FM

BOX 88

RED LION, PENNA.

May 19, 1965

Mr. Ben Waple Secretary Federal Communications Commission Washington, D.C.

In re: Complaint of Mr. Fred J.

Cook; Your ref. #8425-A

Dear Sir:

Under date of March 22, 1965, you wrote us in regard to a complaint from Mr. Fred. J. Cook, Interlaken, New Jersey, alleging that he had been refused free broadcast time on our station WGCB to rebut an alleged personal attack made upon him in late November over the Billy James Hargis Program. You have requested that we comment on this complaint.

The Billy James Hargis broadcast to which Mr. Cook apparently refers was carried on this station on November 27, 1964. We received a letter from Mr. Cook dated December 19, 1964, to which we replied on December 28, 1964. A further letter dated December 31, 1964, was received from Mr. Cook to which we replied on January 7, 1965. Copies of these letters are attached.

It has been our understanding that the Commission's fairness doctrine requires a broadcast licensee to give free time to reply to paid broadcasts only if sponsorship is not available for such reply broadcast. Our communications to Mr. Cook were designed to ascertain whether Mr. Cook was prepared to 'sponsor' or pay for his reply broadcast. Mr. Cook's communications to us, however, have not directly answered our inquiry.

The Commission is hereby advised that WGCB will give Mr. Cook an appropriate amount of time to answer the alleged attack upon him in the Hargis program if he advises us that he is financially unable to 'sponsor' or pay for such a broadcast. We are quite certain that it would be impossible for us to obtain other sponsorship of such a broadcast. If we are incorrect in our proposed method

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of disposition of this matter, we will be glad to have the Commission so advise us and we will follow such other procedure as the Commission may suggest.

A copy of this letter is being sent to Mr. Cook for any comment that he might care to make to us or to the Commission.

Very Truly yours,

RED LION BROADCASTING COMPANY

REV. JOHN M. NORRIS, President'

'FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

In Reply Refer To: 8427-A

October 6, 1965

Reverend John M. Norris, President

Red Lion Broadcasting Company, Inc.

Radio Station WGCB

Post Office Box 88

Red Lion, Pennsylvania

Dear Sir:

This letter refers to a complaint filed with the Commission by Mr. Fred J. Cook of Interlaken, New Jersey, concerning a Billy James Hargis program, 'Christian Crusade', which you broadcast cast in November, 1964. The program included a discussion of the 1964 presidential election and of a book by Mr. Cook about the Republican campaign. Mr. Cook alleges the discussion included the following personal attack against him:

'Now who is Cook? Cook was fired from the New York World-Telegram after he made a false charge publicly on television against an unnamed official of the New York City government. New York publishers and Newsweek magazine for December 7, 1959, showed that Fred Cook and his pal Eugene Gleason had made up the whole story and this confession was made to District Attorney Frank Hogan.'

Mr. Cook asserts that you failed to notify him of the attack or to furnish him with a transcript of summary either before or after the program was aired, and that you refused his request for free time to respond to the attack.

...

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