400 F.2d 1002 (7th Cir. 1968), 16369, Radio Television News Directors Ass'n v. United States

Docket Nº:16369, 16498-16499.
Citation:400 F.2d 1002
Party Name:RADIO TELEVISION NEWS DIRECTORS ASSOCIATION et al., Petitioners, v. UNITED STATES of America and Federal Communications Commission, Respondents. COLUMBIA BROADCASTING SYSTEM, INC., Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents. NATIONAL BROADCASTING COMPANY, Inc., Petitioner, v. UNITED STATES of America
Case Date:September 10, 1968
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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400 F.2d 1002 (7th Cir. 1968)



UNITED STATES of America and Federal Communications Commission, Respondents.



UNITED STATES of America and Federal Communications Commission, Respondents.



UNITED STATES of America and Federal Communications Commission, Respondents.

Nos. 16369, 16498-16499.

United States Court of Appeals, Seventh Circuit.

September 10, 1968

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Lloyd N. Cutler, J. Roger Wollenberg, Timothy B. Dyk, Washington, D.C., Raymond L. Falls, Jr., Lawrence J. McKay, Herbert Wechsler, New York City, Archibald Cox, Cambridge, Mass., Maurice Rosenfield, Harry Kalven, Jr., Chicago, Ill., W. Theodore Pierson, Vernon C. Kohlhaas, Robert N. Lichtman, Pierson, Ball & Dowd, Harold David Cohen, Washington, D.C., Newton N. Minow, Chicago, Ill., Royal E. Blakeman, New York City, for petitioners.

Thomas E. Ervin, Howard Monderer, Douglas E. Cutler, New York City (Cahill, Gordon, Sonnett, Reindel & Ohl, New York City, of counsel), for petitioner, National Broadcasting Company, Inc.

Howard E. Shapiro, Dept. of Justice, Washington, D.C., Daniel R. Ohlbaum, Deputy Gen. Counsel, Robert D. Hadl, Henry Geller, John H. Conlin, Leonore G. Ehrig, Federal Communications Commission, Washington, D.C., Donald F. Turner, Asst. Atty. Gen., Gregory B. Hovendon, Arthur I. Cantor, Attys., Dept. of Justice, Washington, D.C., for respondent.

Michael H. Bader, William J. Potts, Jr., Washington, D.C., Edwin Lukas, Orrin G. Judd, Earle K. Moore, Ed A. Bernstein, New York City, Ernest F. Staub, Chicago, Ill., for amicus curiae

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Office of Communication of the United Church of Christ, United Church Board for Homeland Ministries, Board of National Missions of the United Presbyterian Church in the U.S.A., National Division of the Methodist Board of Missions, General Board of Christian Social Concerns of the Methodist Church, The American Jewish Committee, and National Catholic Conference for Interracial Justice, amici curiae, William B. Ball, Harrisburg, Pa., of counsel.

Lois P. Siegel, Kenneth W. Gross, Washington, D.C., for amicus curiae, King Broadcasting Company; Haley, Bader & Potts, Washington, D.C., of counsel.

Marshall, Bratter, Greene, Allison & Tucker, New York City, for National Academy of Television Arts and Sciences, amicus curiae; Royal E. Blakeman, New York City, of counsel.

Before CASTLE, Chief Judge, KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

This review raises the question of the constitutionality of the Federal Communications Commission's recently promulgated rules concerning the airing of personal attacks and political editorials by broadcasters licensed by the Commission. An unincorporated association of radio and television journalists and eight companies holding licenses for radio and television stations 1 petitioned this court to review and set aside the final order of the Commission, 2 issued on July 10, 1967, (adopted on July 5, 1967) which set forth the new rules. 3 The Columbia Broadcasting System, Inc., (CBS) and the National Broadcasting Co., Inc. (NBC) filed separate petitions to review the Commission's order in the Court of Appeals for the Second Circuit. These petitions were transferred to this court (28 U.S.C. § 2112), and pursuant to our order, the three petitions were consolidated. 4

On April 8, 1966, the Commission released a Notice of Proposed Rule Making. The announced purposes of the rules proposed by the Commission were 'to codify the procedures which licensees are required to follow in personal attack situations' and 'to implement the Times-Mirror 5 ruling as to station editorials

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endorsing or opposing political candidates.' In its notice, the Commission invited interested parties to file comments on the proposed rules. Of the twenty-six comments filed with the Commission, eighteen opposed and eight favored the adoption of the proposed rules.

In the rules dealing with the responsibilities and obligations of licensees with respect to personal attacks, a 'personal attack' was defined as an attack upon the 'honesty, character, integrity or like personal qualities of an identified person or group.' A personal attack would come within the ambit of the rules, however, only if made 'during the presentation of views on a controversial issue of public importance.'

According to the Commission's Memorandum Opinion and Order, the personal attack rules were 'simply a particular aspect of the Fairness Doctrine,' and did 'not alter or add to the substance of the Doctrine.' The Fairness Doctrine was initially articulated in the Report of the Commission in the Matter of Editorialization by Broadcast Licensees, 13 F.C.C. 1246 (1949). In that report, the Commission stated the basic obligation of licensees to present broadcasts concerning public issues, in a manner which would insure that the listening public would be exposed to a broad spectrum of views on a given issue. 6 The Commission indicated that 'specific Congressional approval' of the Fairness Doctrine was contained in the 1959 Amendments to section 315 of the Communications Act. 7

When a personal attack has been broadcast by a licensee, the rules require that the licensee, within a reasonable time, but not later than one week after the attack, notify the person or group attacked of the 'date, time and identification of the broadcast,' provide 'a script or tape (or an accurate summary if a script or tape is not available),' and offer to the person or group attacked 'a reasonable opportunity to respond over the licensee's facilities.'

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Because 'the procedures specified (in prior Commission rulings) 8 have not always been followed (by licensees), even when flagrant personal attacks have occurred in the context of a program dealing with a controversial issue,' the Commission perceived the need for the specific rules here at issue. The Commission's avowed purpose in embodying the procedural aspects of the 'long-adhered to' personal attack principle in rules was twofold: first, to 'clarify and make more precise the obligations of broadcast licensees where they have aired personal attacks'; and second, to enable the Commission 'to impose appropriate forfeitures * * * in cases of clear violations by licensees which would not warrant designating their application for hearing at renewal time or instituting revocation proceedings but * * * do warrant more than a mere letter of reprimand.'

Although the promulgation of the rules represented an attempt to 'clarify' a licensee's obligations, the Commission said the 'rules are not designed to answer such questions' as whether a 'personal attack' had occurred or whether the person or group attacked was 'identified.' In spite of the fact that unanswered questions were to be left to the licensee's 'good faith judgment,' if the licensee remained doubtful of his obligations, the Commission invited prompt consultation to obtain interpretation of its rules.

Some of the Comments submitted in opposition to the proposed rules contained expressions of fear that the rules would both discourage controversial issue programming and infringe the first amendment guarantee of a free press. With respect to the alleged discouragement of controversial issue programming, the Commission responded:

Statements that the rules will discourage, rather than encourage, controversial programming ignore the fact that the rules do no more than restate existing substantive policy-- a policy designed to encourage controversial programming by insuring that more than one viewpoint on issues of public importance are carried over licensees' facilities.

Regarding the constitutional question, which the Commission believed to be 'without merit,' it responded:

As to these particular rules, we stress again that they do not proscribe in any way the presentation by a licensee of personal attacks or editorials on political candidates. They simply provide that where he chooses to make such presentations, he must take appropriate notification steps and make an offer for reasonable opportunity for response by those vitally affected and best able to inform the public of the contrasting veiwpoint. That such rules are reasonably related to the public interest is shown by consideration of the converse of the rules-- namely operation by a licensee limited to informing the public of only one side of these issues, i.e., the personal attack or the licensee's editorial.

In addition, the Commission referred in this regard to the discussion of the 'constitutionality of the fairness doctrine generally in the Report on Editorialization,' 13 F.C.C. 1246 (1949) and the decision in Red Lion Broadcasting Co., Inc. v. FCC, 127 U.S.App.D.C. 129, 381 F.2d 908, cert. granted, 389 U.S. 968, 88 S.Ct. 470, 19 L.Ed.2d 458 (1967). 9

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Specific exemptions from the requirements of the personal attack rules were provided in two instances: attacks on 'foreign groups or foreign public figures,' and personal attacks by qualified candidates on other qualified candidates. 10 The latter exemption was thought to be appropriate in view of the 'equal opportunities' provision of 47 U.S.C. § 315 11 with respect to broadcasts by political candidates.

The Commission's purpose in promulgating the political candidate editorial rules was to clarify the 'licensee's obligations in regard to station editorials endorsing or opposing political candidates.' The rules require that a licensee who broadcasts and editorial endorsing or opposing a candidate for public office must offer the other qualified candidates or the candidate opposed 'a reasonable opportunity * * * to respond.' 12 The response can be made through a spokesman of the candidate's choice. 13 A twenty-four hour notification requirement...

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